The Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States codifies the existing legislation and case-law in the area of free movement. Member States had to bring into force the laws and administrative provisions necessary to comply with the Directive by April 2006. The Immigration (Europe Economic Area) Regulations 2006 implemented in the UK law the Directive.
Last July the ECJ gave its judgment in the so called Metock case which concerns the interpretation of Directive 2004/38/EC. The Irish law requires lawfully residence in another Member State to a national of a third-country who is a family member of an EU citizen to reside with or join that citizen in Ireland.
According to the ECJ there is no provision in the Directive which makes its application conditional on family members of an EU citizen previous residence in a Member State. Moreover, the Court pointed out that the Directive exhaustively lists the documents which third country nationals who are family members of an EU citizen have to present to the host Member State in order to get a residence card and that list does not contain a reference to documents proving prior lawful residence in another Member State.
The Irish Minister of Justice as well as other Member States who submitted observations to the Court has also argued that Member States have exclusive competence “to regulate the first access to Community territory of family members of a Union citizen who are nationals of non-member countries.” However, the ECJ has rejected this argument.
Ireland and other Member States have stressed that they must be able to control immigration at the external borders of the Community. They argued if by an interpretation of Directive 2004/38 a host Member States is prevented to require prior lawful residence in another Member State its ability to control immigration at their external frontiers would be seriously undermined. It is clear from the ECJ case law that Member State’s powers in this area are very limited.
The ECJ has ruled that “Directive 2004/38 precludes legislation of a Member State which requires a national of a non-member country who is the spouse of a Union citizen residing in that Member State but not possessing its nationality to have previously been lawfully resident in another Member State before arriving in the host Member State, in order to benefit from the provisions of that directive.”
It is obvious that the ECJ ruling will have far reaching consequences for the migration laws of several Member States. Ireland as well as other Member States will have to review their legislation in order to be in accordance with the EU Directive. Whereas Ireland, Denmark, the Czech Republic, the UK and Austria would like to reopen the directive the European Commission, Sweden, Portugal and Cyprus are against this idea.
The Council has been discussing the ECJ’s ruling in the Metock case. Last November, the Justice and Home Affairs Council discussed issues concerning the application of the directive on free movement. The UK has called upon the Council to address issues such as false marriages, illegal immigration and expulsion of those who abuse free movement rights. The Council adopted conclusions on abuses and misuses of the right to free movement of persons. The Council will discuss, again, this issue after the Commission has submitted its report evaluating the transposition of the free movement Directive. The Council has asked the Commission to “publish guidelines for the interpretation of that Directive early in 2009 and to consider all other appropriate and necessary proposals and measures.”
On 10 December, the Commission adopted a report on the application of directive on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States which is an inventory of how Member States have transposed and applied the Directive since its adoption. According to the Commission “The overall transposition of Directive 2004/38/EC is rather disappointing. Not one Member State has transposed the Directive effectively and correctly in its entirety. Not one Article of the Directive has been transposed effectively and correctly by all Member States.”
The Commission has pointed out that solely Cyprus, Greece, Finland, Portugal, Malta, Luxembourg and Spain have correctly adopted more than 85% of provisions of the Directive whereas Austria, Denmark, Estonia, Slovenia and Slovakia have correctly adopted less than 60%.
The Commission has identified serious problems of compliance in different areas. According to the report thirteen Member States, including the UK, have failed to correctly transpose the provisions concerning the rights of other family members. Moreover, there are problems with the right of entry and residence of third country family members as Member States do not issue visas quickly enough and require additional documents, not envisaged in the Directive. The Commission has stressed that Denmark, Ireland, Finland and the UK made the right of residence of third country family members conditional upon their prior lawful residence in another Member State. However, the Commission has stressed that the application of this requirement is not provided for in the Directive and that the ECJ has ruled that such requirement is contrary to the Directive. The report pointed out that right of entry is often incorrectly transposed. Solely seven Member States have introduced specific facilities for family members to acquire an entry visa in their legislation. According to the report the UK does not provide for the visa exemption for family members holding a residence card issued by another Member State. The right of residence is also made subject to conditions not foreseen in the Directive.
The Commission has stressed that the transposition of the chapter concerning restrictions of the right of entry and residence on grounds of public policy, public security or public health is insufficient or incomplete. Moreover, the transposition of procedural safeguards against decisions taken on the grounds of public policy, public security or public health is not adequate. The Commission has pointed out that the UK grants the right to appeal only to those EU citizens and their family members who present evidence that they have the right of free movement. Hence, if the UK authorities considered that such evidence has not be produced those persons are not informed about the right of redress whereas the Directive requires all decisions to be open to redress.
It should be recalled that this Directive has impinged upon the UK’s right to deport criminals after release from prison to the EU Member States. The ECJ has been stressed that Member States must indicated on case-by-case basis the exact reasons for imposing restrictions on the right of entry and the right of residence of EU citizens. Moreover, measures based of public order or public security reasons must take into account the personal conduct of the person and on the basis of “a present and serious threat affecting one of the fundamental interests of society.” Therefore, previous criminal convictions do not automatically justify these measures. Hence, it is clear that UK cannot deport a European Citizen after completing a sentenced in a UK prison.
Obviously, the Commission will ensure that the Directive is correctly transposed and implemented across the EU. Jacques Barrot has said " The Commission will use fully its powers under the Treaty to achieve this result, launching infringement proceedings when necessary, providing guidance to the Member States and ensuring that EU citizens are informed of their rights."
The Report announced that the Commission will publish guidelines in the first half of 2009, in order to offer guidance to Member States on application of the directive and its problematic points. The request of clarification mostly concerned the expulsion of EU nationals and members of their family.
Denmark and Ireland following the ECJ´s ruling have been calling for a modification of the directive in order to deal with marriages of convenience. Obviously, the Commission has taken the Court ruling into account. Therefore, in spite of requests by Denmark and Ireland, the European Commission does not intend to revise the Directive. Jacques Barrot stated “we will say ‘no’ to any change.” The Commission will not open the debate on the content of the directive. According to the Commission the current legislation has “lawful and suitable means” to prevent marriages of convenience.
At least the Irish are complying the with the Directive since their defeat at the ECJ, the British government considers itself above the law and has blatantly ignored this ruling on freedom of movement- they still insist on prior lawfull residence, their EEA family Permit under their own warped intepretation of the Directive 2004/38/EC. The EU is only capable of harrassing smaller countries like Ireland and Denmark while high and mighty UK flouts the Directive at will.