The Applicants were a married couple: Mr Zada was an Iranian national who had unsuccessfully applied for asylum in Ireland; Ms Sirkovskaja was an Estonian national in full time employment. The Applicants married in February 2007 and Mr Zada applied for a residence card under Article 9 of Directive 2004/38/EC as a family member and spouse of a Union citizen. The application was approved and Mr Zada was informed that in order to obtain the residence card he was required to attend at a Garda Station and produce a valid passport as proof of identity. Mr Zada claimed not to possess a passport from his county of origin and attended at Waterford Garda Station where he produced his national identity card. His request for a residence card was refused because of the non-production of a valid passport.
In October 2009 the Applicants obtained leave to seek judicial review in order to compel the Minister to issue a residence card to Mr Zada. In its judgment on the substantive application, the High Court (Cooke J.) found that, upon a reading of the Directive, the requirement of a presentation of a valid passport is mandatory in the case of a non-national of an EU Member State. The alternative of presentation of a national identity card, open to a Union citizen, is not permitted. The Court dismissed the submissions of the Applicants that the case-law of the Court of Justice of the EU supported Mr Zada’s position, saying that they related to an earlier legislative context and were thus distinguishable.
The Court was satisfied that the Directive obliged the Minister to insist upon proof of nationality and identity by means of the production of a passport in the case of a family member who is not a national of a Member State of the Union.
The Court further found that the EC (Freedom of Movement) (No. 2) Regulations 2008 had not failed to give effect to the Directive and that the Minister’s insistence on the production of a passport could not be said to be invalid as disproportionate even if the Minister did retain some margin of discretion to derogate from the otherwise mandatory condition. The Court also noted that the Applicant was not a stateless person who could not possibly produce a passport. Accordingly, the Court refused the application for judicial review.