Raducan and Raducan v Minister for Justice, Equality and Law Reform and Others


Respondent/Defendant:Minister for Justice, Equality and Law Reform and Others
Court/s:High Court
Citation/s:[2011] IEHC 224
Judgment Date/s:03 Jun 2011
Judge:Hogan J.
Category:Detention, EU Treaty Rights
Keywords:Detention, EU Treaty Rights, Family Member, Removal, Residence Permit, Third-Country National, Union Citizen
Country of Origin:Romania and Moldova
Geographic Focus:Ireland

Mr Raducan was Romanian and Ms Raducan was Moldovan. They married in Romania in 2007. The moved to Ireland in 2007 and in 2010 they returned briefly to Romania. While there, they obtained a certified copy of their marriage certificate. Ms Raducan also obtained a residence card as a family member of a Union citizen. They returned to Ireland on 29 October 2010. Ms Raducan was not in possession of an Irish visa and she was refused entry into the State by the GNIB at Dublin Airport. She was then arrested pursuant to section 5 of the Immigration Act 2003, which provides for detention and removal from the State of persons refused leave to land. Her husband was permitted to enter the State and he immediately contacted his solicitors. He arranged for an Article 40 inquiry (also known as a habeas corpus application) to be held the next day and on 2 November 2010 the High Court ordered Ms Raducan’s release.

The Applicants then applied to the High Court for declarations that Ms Raducan’s detention had been unlawful and that by refusing the admit her, the State had failed to comply with the provisions of the Citizens’ Rights Directive (Council Directive 2004/38/EC). The Respondents opposed the application and called evidence that Ms Raducan had not produced her marriage certificate or residence card to the GNIB at the airport. This evidence was contradicted by Ms Raducan, and the Applicants also adduced evidence that Ms Raducan had been in possession of both documents when she arrived in prison.

The High Court (Hogan J.) concluded that the evidence suggested that Ms Raducan had produced the documents but that the GNIB officers had not appreciated their importance. The Court held that the State had failed to put facilities in place to comply with that Article 5(2) of the Citizenship Directive, which states that ‘[f]amily members who are not nationals of a Member State shall only be required to have an entry visa in accordance with Regulation (EC) No 539/2001 or, where appropriate, with national law. For the purposes of this Directive, possession of the valid residence card referred to in Article 10 shall exempt such family members from the visa requirement. Member States shall grant such persons every facility to obtain the necessary visas. Such visas shall be issued free of charge as soon as possible and on the basis of an accelerated procedure.’ The Court noted that no such accelerated procedures were available at Dublin Airport.

The Court further held that there had also been a violation of Article 5(4), which states that ‘[w]here a Union citizen, or a family member who is not a national of a Member State, does not have the necessary travel documents or, if required, the necessary visas, the Member State concerned shall, before turning them back, give such persons every reasonable opportunity to obtain the necessary documents or have them brought to them within a reasonable period of time or to corroborate or prove by other means that they are covered by the right of free movement and residence.’ The Court observed that no such reasonable opportunity had been afforded to Ms Raducan.

The Court stated that it was a matter of ‘profound regret’ that an innocent person who had every right to enter the State was refused entry, arrested and sent to prison for nearly three days. The Court made the declarations sought by the Applicants and awarded Ms Raducan €7,500 in damages for breaches of Constitutional rights.


The procedures at Dublin Airport for spouses of EU citizens are inconsistent with the Citizenship Directive

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