The first-named applicant applied for asylum on arrival in Ireland. He subsequently married the second-named applicant, an Estonian national. The first-named applicant had made a previous application for asylum in Belgium and a transfer order pursuant to Council Regulation (EC) No. 343/2003 was made to remove him to Belgium. The applicants requested that the first-named applicant be granted residency on the basis of his marriage to an EU national, pursuant to Directive 2004/38/EC.
The Minister refused the application on the basis that the applicants had not submitted evidence that the first-named applicant had been lawfully resident in another Member State before coming to Ireland, as S.I. No. 226/2006, which implemented the Directive required. The applicants sought to quash this decision on the basis that the statutory instrument was ultra vires the Directive. The High Court refused the relief sought, finding that the first-named applicant’s aim was to circumvent the State’s immigration laws, that the second-named applicant was probably aware of this and that the applicant’s dishonesty should weigh in the balance in considering the rights at issue. The Court held that the Directive was intended to apply to families that were established in a Member State prior to moving to a host Member State and that there was no apparent infirmity in the Minister’s decision. The applicants appealed to the Supreme Court after the High Court certified that the matter disclosed a point of law of exceptional public importance in the public interest. The appeal remains pending at the time of writing.
