To recall, in July 2008 the ECJ gave its judgment in the Metock case concerning the interpretation of 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.

The Irish law implementing the Directive 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. The ECJ has ruled that Ireland immigration laws are incompatible with the free movement Directive. According to the ECJ there is no provision of Directive 2004/38 which makes the application of the directive conditional on family members of an EU citizen previous residence in a Member State.

The Irish Minister for Justice as well as other Member States who submitted observations to the Court has 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. The Minister for Justice has also stressed that Member States must be able to control immigration at the external borders of the Community. He argued if by an interpretation of Directive 2004/38 host Member States are prevented to require prior lawful residence in another Member State their ability to control immigration at their external frontiers would be seriously undermined. Nevertheless, the ECJ has replied saying that not all nationals of third countries have rights of entry into and residence in a Member State under Directive 2004/38 but solely family members of a Union citizen who has exercised his right of freedom of movement by establishing himself in a Member State other than his own.

It is well known that free movement of people in the EU takes precedence over national immigration laws. It is clear from the ECJ case law that Member State’s powers in this area are very limited.

The Council has been discussing the ECJ’s ruling in the Metock case as it entails far reaching consequences for the migration laws of several Member States. 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 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.”

Last December, the Commission adopted a report on the application of the directive 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.” Unsuprisely, 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."

On 2 July, the European Commission adopted a Communication “on guidance for better transposition and application of 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.” This Communication is aiming at providing guidance to Member States on how to interpret and apply the Directive. The Commission has adopted recommendations on the issues considered, in its report, as problematic in the transposition and application of the Directive.

The Commission has pointed out that these guidelines are without prejudice of the ECJ case law.

The Commission stressed that the Directive only applies to EU citizens who move to a Member State other than the Member States of their nationality and to their family members. Generally, EU citizens residing in the Member State of their nationality do not benefit from the rights granted by Community law on free movement of persons and their third country family members are therefore covered by national immigration rules. Nevertheless, those EU citizens who go back to their home Member State after having resided or having exercised their rights to free movement in another Member State may benefit from the rules on free movement of persons.

The guidelines stated that the Directive applies to “a de facto durable relationship, duly attested”, this requirement must be assessed taking into account the Directive’s aim “to maintain the unity of the family in a broad sense.”

According to the Commission the Directive does not provide for any restrictions as to the degree of relatedness as regards "other dependant family members." The Directive does not provide for requirements as to the minimum duration of the dependency or the amount of material support.

Where the dependant family members provide documentary evidence of their dependency, the host Member State may not refuse to recognise their rights. The Commission has stressed that although the Member States have some discretion defining criteria to decide whether to grant the rights provided in the Directive to "other dependent family members" their liberty is conditional as the national legislation must take into account the personal circumstances of the applicants concerned, their relationship with the EU citizen as well as their financial or physical dependence.

Third country family members moving with or joining an EU citizen have the right to enter the territory of the Member State as well as the right to obtain an entry visa. The Directive requires that they should be issued “as soon as possible and on the basis of an accelerated procedure with a free of charge short-term entry visa.” The Commission has stressed that under the Directive Member States are only allowed to require the presentation of a valid passport and evidence of the family link and when applicable proof of dependency and durability of partnerships. Moreover, Member States are allowed to required solely the documents listed in the Directive for the application of a residence card.

The Commission recalled that the provisions on freedom of movement for persons “must be given a broad interpretation, whereas derogations from that principle must be interpreted strictly.” The freedom of movement of EU citizens may be restricted by the Member States on grounds of public policy or public security. The ECJ and the Commission have been stressing 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.

The Commission has reiterated that measures based on public order or public security reasons must take into account the personal conduct of the person and be based on “a present and serious threat affecting one of the fundamental interests of society.” Therefore, previous criminal convictions do not automatically justify these measures.

It is well known that this Directive impinges upon the UK’s right to deport criminals after release from prison to the EU Member States.

Moreover, Member States are also required to undertake a “proportionality assessment” to decide whether the person in question can be denied entry or removed on grounds of public policy or public security. In assessing the appropriateness of the measure, the Member States’ authorities must take into account the personal and family situation of the individual.

Several Member States, particularly Ireland and Denmark, have complained that since the Directive came into force the number of marriages of convenience has rise. Following the ECJ´s ruling those Member States have been calling for a modification of the directive in order to deal with this issue.

In spite of requests by Denmark and Ireland, the European Commission does not intend to revise the Directive. According to the Commission the current legislation has “lawful and suitable means” to prevent marriages of convenience. Moreover, the Commission believes that its guidelines will help the Member States to combat marriages of convenience. However, according to the Copenhagen Post several Danish politicians are not pleased with the Commission’s guidelines calling them "absurd" and “unacceptable.”

Marriages of convenience for the purposes of the Directive are defined “as marriages contracted for the sole purpose of enjoying the right of free movement and residence under the Directive that someone would not have otherwise.”

According to the Commission’s guidelines Member States may take measures to combat marriages of convenience but they may not deter EU citizens and their family member’s right to free movement in the EU. The Commission has stressed that “In accordance with the principle of supremacy of Community law, the assessment of whether Community law was abused must be carried out in the framework of Community law, and not with regard to national migration laws.”

The Commission has stated that Member States are not prevented from “investigating individual cases where there is a well-founded suspicion of abuse.” However, systematic checks are prohibited under Community law.

The Commission has indicated several factors which may suggest that Community rights have not been abused, such as the lawfully residence of the third country spouse in the EU citizen’s Member State, long term relationship. The Commission has also mentioned different factors which may suggest the intent to abuse the rights conferred by the Directive in order to contravene national immigration laws such as the case of the couple have never met before their wedding as well as the couple inconsistency about their respective personal details.

Moreover, abuse of Community rights may also happened in case where due to national immigration rules EU citizens are unable to be joined, in their home Member State, by their third country family members, and move to another Member State just to evade, upon returning to their home Member State, the national immigration law, invoking, in this way, their Community law rights.

The Commission has pointed out that Member States, in their investigations, may take into account factors such as the circumstances under which the EU citizen in question moved to another Member State, level of effectiveness and genuineness of residence in the host Member State as well as the circumstances under which the EU citizen moved to his home country.

The Commission has stressed that “The mere fact a person consciously places himself in a situation conferring a right does not in itself constitute a sufficient basis for assuming that there is abuse.”

According to the Commission’s guidelines Member States are allowed to refuse to confer or to withdraw rights under Community law on free movement of people, consequently, they may expel the person who acquired rights by abuse or fraud. Under the Directive Member States may take measures against abuse and fraud but such measures “must be proportionate and subject to the procedural safeguards provided for in the Directive.”

Since Community law does not, presently, provide any specific sanctions, Member States are still free to lay down civil, administrative or criminal sanctions in the framework of fight against abuse or fraud provided they are “effective, non-discriminatory and proportionate.”