On the 10th of September the European Court of Justice delivered the highly awaited judgement in the case of Nalini Chenchooliah v Minister for Justice and Equality Case C94/18. The case concerned the European Communities (Free Movement of Persons) Regulations 2015/Council Directive 2004/38/EC and the practice of the Minister for Justice and Equality in utilising the domestic immigration procedure under S3 of the Immigration Act 1999 to issue notices of intention to deport and Deportation Orders against family members of EU nationals who have fallen outside the remit of the Free Movement of Persons Regulations.
The European Communities (Free Movement of Persons) Regulations 2015 transpose Council Directive 2004/3/EC into Irish law. This legislation is the primary law dealing with the rights of EU citizens and their family members to reside and exercise their EU Treaty Rights in other EU member states. The Regulations not only deal with the rights of EU citizens and their family members to reside in Ireland, but also distinctly set out a clearly defined process for the making of Removal Orders when a person is no longer entitled to live in Ireland pursuant to the terms of the Regulations and Directive. This would arise when for example a non-EEA nationals spouse has left the State on a permanent basis.
In recent times, rather than issuing the relevant Notices or Orders under the Free Movement of Persons Regulations, the Minister for Justice and Equality has been utilising the States domestic deportation procedure pursuant to Section 3 of the Immigration Act 1999. A significant consequence of this is that a person may be issued with a Deportation Order at the end of the process which would exclude them from returning to the State indefinitely.
Under Section 3(1) of the Immigration Act 1999 as amended, the Minister may make a deportation order to ‘require any non-national specified in the order to leave the State within such period as may be specified in the order and to remain thereafter out of the State’.
A Removal Order issued under the Free Movement of Persons Regulations would result in a person being removed from the State however no ban is placed on them from returning and they are fully entitled to apply to return to the State in the future should they wish to do so.
Moreover, having a deportation order on one’s record can have significant consequences for their future travel and seriously restrict further travel to other countries, particularly if they are a visa required national.
In the Chenchooliah case, the High Court referred the following questions to the European Court of Justice for a preliminary reference:
(1) Where the spouse of an EU citizen who has exercised free movement rights under Article 6 of Directive [2004/38] has been refused a right of residence under Article 7 on the basis that the EU citizen in question was not, or was no longer, exercising EU Treaty rights in the host Member State concerned, and where it is proposed that the spouse should be expelled from that Member State, must that expulsion be pursuant to and in compliance with the provisions of the Directive, or does it fall within the competence of the national law of the Member State?
(2) If the answer to the above question is that the expulsion must be made pursuant to the provisions of the directive, must the expulsion be made pursuant to and in compliance with the requirements of Chapter VI of the Directive, and particularly Articles 27 and 28 thereof, or may the Member State, in such circumstances, rely on other provisions of the Directive, in particular Articles 14 and 15 thereof?’
Findings of the Court
The court held that the decision taken by the Minister for Justice to issue an expulsion order under national law – deviating completely from the terms of the Directive, was incorrect.
The court noted in that regard that Directive 2004/38 does not contain only rules governing the conditions of the various types of residence rights, it makes provision for how it may be obtained and the conditions to be met in order to be able to continue to enjoy the rights concerned.
It also noted that the Directive clearly lays down a set of rules intended to govern the situation arising in which entitlement to one of those rights is lost, inter alia where the Union citizen leaves the host Member State.
It held that Article 15 of Directive 2004/38, entitled ‘Procedural guarantees’, provides that the procedures provided for by Articles 30 and 31 of the Directive are to apply by analogy to all decisions restricting free movement of Union citizens and their family members on grounds other than public policy, public security or public health and to find otherwise would deprive Article 15 of its substance and practical effect.
It finally held that Article 15(3) of Directive 2004/38 provides that the host Member State may not impose a ban on entry in the context of an expulsion decision.
Sinnott Solicitors Analysis of the Judgement
The judgment is of significant importance to family members of EU nationals who have lost their right of residence to live in the State.
Many individuals who were previously granted residence cards under EU Treaty Rights have been issued with unlawful notices of intention to deport under S3 of the Immigration Act 1999 and their cases are currently being erroneously processed under an incorrect procedure.
Even more significantly many individuals have been issued with unlawful Deportation Orders, have been unlawfully removed from the State and remain excluded from returning on foot of these unlawfully issued Deportation Orders. Significant grounds arise in both situations to now have these unlawful notices and Deportation Orders revoked.
If you have been affected by the findings of this judgement and are seeking advices on what to do next, do not hesitate to contact the office of Sinnott Solicitors today on +353 1 406 2862 or firstname.lastname@example.org for assistance.