The Irish legislation transposing Directive 2004/38/EC provided that a national of a third-country who is a family member of a Union citizen may reside with or join that citizen in Ireland only if he is already lawfully resident in another Member State. In each of the cases a third-country national arrived in Ireland and applied unsuccessfully for asylum but while resident in the State married an EU citizen.
The Minister for Justice, Equality and Law Reform, and the Court, accepted that these were not marriages of convenience. Each of the non-EU spouses subsequently applied for a residence card as the spouse of a Union citizen. The applications were refused on the ground that the spouse did not satisfy the condition of prior lawful residence in another Member State. The applicants sought to quash these decisions by way of judicial review.
The High Court asked the Court of Justice whether such a condition of prior lawful residence in another Member State is compatible with the Directive. The Court of Justice found that the application of the Directive was not conditional on previous lawful residence in another Member State and that the Directive applied to all EU citizens who move to or reside in a Member State other than their State of origin and to their family members who accompany or join them. The Court considered that its judgment in Akrich had to be reconsidered and that the benefit of rights could not depend on prior lawful residence of the spouse in another Member State.
The Court found that if EU citizens were not allowed to lead a normal family life in the host Member State, the exercise of their guaranteed freedoms would be seriously obstructed, since they would be discouraged from exercising their rights of entry into and residence in, that Member State. The Court observed that Member States could refuse entry and residence on grounds of public policy, public security or public health, the refusal being based on an individual examination of the particular case. The Court also observed that the Member States could refuse any right conferred by the Directive in the case of abuse of rights or fraud. The Court also held that a non-Community spouse of a Union citizen who accompanies or joins that citizen can benefit from the Directive, irrespective of when and where their marriage took place and of how that spouse entered the host Member State. The Court stated that the Directive did not require that the EU citizen must have already founded a family at the time when he moves, in order for his family members to enjoy the rights established by the Directive. The Court also stated that it made no difference whether the family members of an EU citizen enter the host Member State before or after becoming family members of the citizen.
