Mr Decsi, a Hungarian citizen married Ms Zhao, a Chinese national, in March 2010. Ms Zhao applied to the Minister under the EC (Freedom of Movement) (No. 2) Regulations 2008 for the issue of a residence card. Ms Levalda, a Latvian national married Mr, Syed, a Pakistanti national that same month and made a similar application.
Both cases related to a recent change in policy on the part of the Minister in relation to the granting of provisional residence permission to spouses or family members of EU citizens pending a decision on their application for a residence card under the provisions of the 2008 Regulations. Both concerned the point in time at which the spouse of an EU citizen who is not a national of a Member State is entitled to take up employment, and whether he or she was entitled to take up employment as from the date of acknowledgment of receipt of the application for a residence card or whether he or she must wait until the Minister has given a decision on the application.
Both Ms Zhao and Mr Syed were entitled to work under the terms of their relevant visas at the time of their marriages, but were then granted Stamp 3 permissions to remain in the State pending the determination of their applications under the Regulations. Under the terms of their Stamp 3 permissions, they were not permitted to work.
The Court considered whether the entitlement to take up employment conferred by Article 23 of Directive 2004/38/EC (implemented by Regulation 18(1)(b)) accrues to the spouse of the Union citizen upon arrival in the State (if already married to the Union citizen) and dates from the date of marriage or accrues only from the issue of the residence card. In the judgment of the Court, the entitlement of the spouse of a Union citizen to take up employment was not dependent upon or delayed until the issue of the residence card, but was exercisable at least from the receipt of the acknowledgment of the application. The Court noted that the residence card does not confer the right to reside but is merely evidence of the exercise of that right. The Court observed that it was not the right of residence as such which was in issue in the present cases, but the entitlement of a family member to seek and take up employment and the point in time at which that entitlement is exercisable. The Court found that the entitlement to take up employment operates in parallel or as an adjunct to the right of residence.
The Court granted declaratory relief that the right of Ms Zhao and Mr Syed to reside in the State and their entitlement to take up employment were exercisable as and from the date of the receipt of the acknowledgment notice issued by the Minister pursuant to Regulation 7(1)(c) of receipt of a valid application for a residence card, but remain liable to revocation with retroactive effect in the event that the Minister lawfully refuses to issue the residence card within the period of six months prescribed.
