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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Lahyani -v- The Minister for Justice & Ors [2013] IEHC 176 (18 April 2013)
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Cite as: [2013] 3 CMLR 23, [2013] IEHC 176
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Judgment Title: Lahyani -v- The Minister for Justice & Ors Neutral Citation: [2013] IEHC 176 High Court Record Number: 2012 115 JR Date of Delivery: 18/04/2013 Court: High Court Composition of Court: Judgment by: Clark J. Status of Judgment: Approved |
Neutral Citation [2013] IEHC 176 THE HIGH COURT JUDICIAL REVIEW Record No. 2012 / 115 J.R. Between:/ KHALID LAHYANI APPLICANT -AND-
THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERAL RESPONDENTS JUDGMENT OF MS JUSTICE M. CLARK, delivered on the 18th day of April 2013. 1. This judgment concerns the interpretation of Directive 2004/38/EC of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States and in particular the application of Article 13(2) (a) of the Directive to a non-EU national whose marriage to an EU citizen has ended and whose wife has left the State. 2. The application comes before the Court as a judicial review challenging the lawfulness of the decision of the respondent Minister to revoke the applicant’s derivative right of residence in November, 2011. Leave was granted on an ex parte basis by order of Cooke J. dated the 20th February, 2012, to seek:-
2. A Declaration that the respondent Minister’s purported termination of that right was unlawful. 3. An order of certiorari quashing the respondent Minister’s purported revocation of the applicant’s right of residency. 4. An order directing the respondent Minister to grant the applicant a residence card. 5. Damages for breach of the applicant’s EU Law rights.
(ii) Breach of Regulation 10 of the European Communities (Free Movement of Person) (No. 2) Regulations 2006 (S.I. No. 656 of 2006) and Article 13 of Directive 2004/38/EC in conjunction with inter alia T.E.U. Articles 2 and 6, T.F.E.U. Article 45 and Article 45(2) (ex 39 TEC) and EU Charter on Fundamental Rights, Article 7, as well as the general interpretive principle against absurdity (i.e. once divorced, plausibly the applicant has a right of residence but, ostensibly and read literally, he has no such right while his divorce proceedings are pending and he is prosecuting them with due expedition). 5. The respondent Minister says the applicant has no continuing right of residence. The purpose of Directive 2004/38/EC is to facilitate the free movement of Union citizens throughout the Member States by permitting their family members including non-EU nationals to accompany or join them in the host state. The right of those family members to reside in the host state is tied to the legal presence of the EU spouse. If the EU spouse departs, then subject to defined exceptions which do not apply in this case, the non-EU spouse has no right to remain. It is not the case that if the EU spouse leaves, the remaining spouse can elect to remain and seek a divorce and then gain an individual right of residence in the host state. The provisions of the Directive concerning divorce, annulment and dissolution of civil partnership are intended to protect the non-EU spouse while his or her EU citizen spouse is living and working in the host state but not if the EU citizen has departed. BACKGROUND TO THE REVOCATION OF THE APPLICANT’S RIGHT TO RESIDE IN IRELAND 7. The events after the issue of the 5 year residence card are hazy. Ms A.S. the EU citizen wife appears to have left her husband very shortly after the issue of the residence card. By letter dated the 10th September, 2008, she wrote to the Minister informing him that she had left Ireland and returned to France. The letter is strongly suggestive of a deeply unhappy marriage and a wife who felt that she was duped into marriage on false premises namely to facilitate lawful residency for the husband in Ireland. This letter was received by the Minister on the 16th September, 2008. 8. One year later, by letter dated the 24th September, 2009, the Minister wrote to the husband informing him that he proposed to revoke his right of residence on the basis that his wife was no longer resident in Ireland. The letter was returned the following week marked “gone away”. No further steps were taken at that time and matters remained dormant until the 21st January, 2010, when a Detective Superintendent in Limerick wrote to the Irish Naturalisation and Immigration Service (INIS) referring to previous correspondence forwarded on the 16th December, 20081, and advising that on the 18th January, 2010, Ms A.S. had called to a Garda Station in Limerick to advise that she and her husband had separated and were no longer living together. Superintendent Noel J. Clarke reported that she repeated the allegations made in her earlier letter that her husband married her in order to get permission to remain by way of EU Treaty and that their marriage was one of convenience and advised that she intended returning to France in the near future. 9. The only inference which can be drawn from this information is that the EU citizen wife returned to Ireland at some time after her initial departure in 2008. 10. On the 5th May, 2010, the EU Treaty Rights Section of the Department of Justice issued a second proposal to revoke, again on the basis that the EU citizen wife had left the jurisdiction. The husband replied within days, stating that he and his wife had difficulties in January / February 2010 but they had talked it through and they had resumed living together three months earlier and were determined to make a go of their marriage. The husband told the Minister that he was actively looking for work. He furnished the Minister with a pay slip asserted to have been issued to his wife by her employer, a named company, on the 30th April, 2010, but the hours worked, salary received, tax and contributions paid were blacked out and were not legible. 11. The husband was now clearly aware that the wife’s departure and a proposal to revoke his permission to be in the State were connected. 12. The bona fides of the husband’s assertions seem to have been accepted as the EU Treaty Rights Section wrote by return of post indicating that his right to reside would not be revoked and was valid until 2013. 13. On the 9th November, 2010, the Minister was informed by an official in the Department of Social Welfare that Ms A.S. had left her job of her own accord and had returned to France. No date of the cessation of employment was provided. The following day the Minister wrote to the husband seeking evidence of any change in his circumstances. Legislation obliges non-nationals to register any change in circumstances. He replied the following week confirming that his wife had left Ireland and had told him she had no intention of returning. Again, no date was furnished for her departure. The husband sought permission to remain in Ireland, to obtain work and to become independent. He hoped to be offered a job for which he had interviewed. He also furnished a medical report relating to a recurring eye infection which he said had prevented him from working until then. He made no reference to the status of his marriage or of any intentions to seek a divorce. 14. On the 3rd December, 2010, the Minister wrote to the husband requesting documentary evidence that he had initiated divorce proceedings. The husband replied on the 25th January, 2011, stating that he had an upcoming meeting with a barrister and had been advised that he would have to return to Morocco to obtain a divorce. He said this might take time as he had to save money and arrange his travel. He confirmed that he had not commenced divorce proceedings. It has to be assumed that the husband was now fully aware that divorce was associated with any right he might have to be permitted to remain. 15. On the 9th February, 2011, a third proposal to revoke issued to the husband. He was given ten days to make written submissions as to why his permission to remain in the State should not be revoked. No response was made to that letter. In April 2011 his file was analysed and it was recommended that his permission to remain should be revoked on the basis that Ms A.S. the EU citizen was no longer residing in the State exercising her EU Treaty rights. Further, it was stated that the applicant was not employed and had not made any contribution since 2008. His removal was recommended under the ECs (Free Movement of Persons) (No. 2) Regulations (S.I. No. 656 of 2006), as amended by S.I. No. 310 of 2008. 16. The decision to revoke the husband’s residence card was then made but for no identified reason this revocation was not notified to the husband and there followed a further unexplained period of delay until the 27h September, 2011, when a fourth proposal to revoke issued. That letter was returned to the Minister by An Post. 17. The husband’s file was examined again on the 1st and the 8th November, 2011. The facts before the Minister were therefore as follows:-
• The EU citizen wife Ms A.S. came to Ireland in 2007 in the exercise of her EU Treaty rights in search of employment and obtained such employment. • Her husband followed her and was given permission to remain in the State for a period of 5 years from September 2008 on the basis that he was a qualifying family member of an EU citizen. • The couple had been living together in Ireland since December 2007. • Sometime in 2010, possibly July / August, the wife ceased working and left Ireland and ceased exercising her EU treaty rights. • The parties were married for more than three years of which at least one year was spent in Ireland prior to their separation. • They had no children; the husband was seeking employment and had not been employed since 2008. • The Minister had enquired in December 2010 whether the husband had obtained or was in the process of obtaining a divorce. • The Minister was informed that the couple was not divorced and the husband had taken no steps to obtain a divorce. The husband informed the Minister that he would have to go to Morocco to obtain a decree and the travel arrangements would take some time.2 • The EU citizen wife left Ireland at least 17 months earlier. RELEVANT PROVISIONS 20. Article 12 deals with the effect on family members of the departure or death of the EU citizen. Paragraphs 1 and 2 relate to death while 3 deals with departure. Article 12 provides:
2. Without prejudice to the second subparagraph, the Union citizen's death shall not entail loss of the right of residence of his/her family members who are not nationals of a Member State and who have been residing in the host Member State as family members for at least one year before the Union citizen's death. Before acquiring the right of permanent residence, the right of residence of the persons concerned shall remain subject to the requirement that they are able to show that they are workers or self-employed persons or that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State, or that they are members of the family, already constituted in the host Member State, of a person satisfying these requirements. "Sufficient resources" shall be as defined in Article 8(4). Such family members shall retain their right of residence exclusively on a personal basis. 3. The Union citizen's departure from the host Member State or his/her death shall not entail loss of the right of residence of his/her children or of the parent who has actual custody of the children, irrespective of nationality, if the children reside in the host Member State and are enrolled at an educational establishment, for the purpose of studying there, until the completion of their studies.”
Before acquiring the right of permanent residence, the persons concerned must meet the conditions laid down in points (a), (b), (c) or (d) of Article 7(1). 2. Without prejudice to the second subparagraph, divorce, annulment of the Union citizen's marriage or termination of his/her registered partnership referred to in point 2(b) of Article 2 shall not entail loss of the right of residence of a Union citizen's family members who are not nationals of a Member State where: (a) prior to initiation of the divorce or annulment proceedings or termination of the registered partnership referred to in point 2(b) of Article 2, the marriage or registered partnership has lasted at least three years, including one year in the host Member State; or (b) by agreement between the spouses or the partners referred to in point 2(b) of Article 2 or by court order, the spouse or partner who is not a national of a Member State has custody of the Union citizen's children; or (c) this is warranted by particularly difficult circumstances, such as having been a victim of domestic violence while the marriage or registered partnership was subsisting; or (d) by agreement between the spouses or partners referred to in point 2(b) of Article 2 or by court order, the spouse or partner who is not a national of a Member State has the right of access to a minor child, provided that the court has ruled that such access must be in the host Member State, and for as long as is required. Before acquiring the right of permanent residence, the right of residence of the persons concerned shall remain subject to the requirement that they are able to show that they are workers or self-employed persons or that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State, or that they are members of the family, already constituted in the host Member State, of a person satisfying these requirements. 'Sufficient resources' shall be as defined in Article 8(4). Such family members shall retain their right of residence exclusively on personal basis.”
(b) Before acquiring an entitlement to permanent residence under Regulation 12, a family member referred to in subparagraph (a) must satisfy one or more of the conditions referred to in Regulation 6(2)(a)(i) to (iv). (2) (a) Subject to subparagraph (b), a family member of a Union citizen who is not a national of a Member State may retain a right of residence in the State on an individual and personal basis in the event of the Union citizen's divorce or annulment of his or her marriage. (b) Subject to subparagraph (c), a right of residence referred to in subparagraph (a) shall only be retained where the Minister is satisfied that – (i) prior to initiation of the divorce or annulment proceedings, the marriage had lasted at least 3 years, including one year in the State, (ii) by agreement between the spouses, or by court order, the spouse who is not a national of a Member State has custody of the Union citizen's children, (iii) the retention of such right of residence is warranted by particularly difficult circumstances, such as the spouse having been a victim of domestic violence while the marriage was subsisting, or (iv) by agreement between the spouses, or by court order, the spouse who is not a national of a Member State has the right of access to a minor child, provided that the court has ruled that such access must be in the State, and for as long as is required”. The Applicant’s Submissions 24. Reliance is placed on recital 15 of the preamble to the Directive which provides:
26. The husband argues that when dealing with the rights of family members and EU free movement rights, an interpretation must be applied to Article 13 which does not give the EU citizen the power to extinguish a spouse’s right of residency in the event of marital breakdown or difficulty. Such a situation was envisaged by the European Court of Justice in Diatta v. Land Berlin (C–267/83) [1985] ECR I-00567 where the Court stated (at para. 10) that, “[…] if co-habitation of the spouses were a mandatory condition, the worker could at any moment cause the expulsion of his spouse by depriving her of a roof.” 27. The husband submits that the criteria for the retention of a right of residence following the departure of the EU spouse under Article 12 are fairly strict: there must be children in education and family life has to be maintained by the non-EU parent having access to his children. However, under Article 13(2) (c), retention of the right of residence may also apply in the event of divorce or termination of marriage if there are particularly difficult circumstances such as the non-EU spouse being a victim of domestic violence. It would therefore be artificial to interpret Article 13(2) (a), which deals with inter alia the temporal requirements of the marriage prior to the divorce of the couple, as subjecting the right of retention to the additional requirement that the EU spouse must also remain in the host Member State until divorce proceedings are concluded. To interpret Article 13(2) in such a manner would be to deprive it of its effectiveness which is an incorrect interpretation of any provision of a Directive. The applicant relies on the guidance given by the Court of Justice in Metock v. The Minister for Justice (C–127/08, 25th July 2008) [2008] ECR I-06241, where at para. 84 the Grand Chamber held that, “Having regard to the context and objectives of Directive 2004/38, the provisions of that directive cannot be interpreted restrictively, and must not in any event be deprived of their effectiveness”. As to the general interpretation of EU measures the applicant also relies generally on the judgment of Bingham J., as he then was, sitting in the Queen’s Bench division of the High Court in the commercial case of Customs and Exercise Commissioners v. ApS Samex [1983] 1 All ER 1042, where he stated (at p. 1056):
29. In the applicant’s contention, the Minister’s narrow interpretation would do injustice to the scheme and purpose of Directive 2004/38/EC and to the wider interpretation applied by the Court of Justice in all cases involving the free movement of EU citizens and members of their family. The purpose of Article 13(2) is to protect estranged third county national spouses from the possibility of their EU spouses having the power to end their right of residence. Article 13 must be given an interpretation which avoids that possibility. 30. Finally, the applicant distinguishes the reasoning of Herbert J. in Shyllon v The Minister for Justice [2010] IEHC 153 as the points raised and argued in this challenge were not raised in that case, where leave was refused because the learned Judge did not find sufficient reason to grant an extension of time. The Respondents’ Submissions 32. The Minister argues that in this particular case, the applicant only ever enjoyed a derived or secondary right of residence under Directive 2004/38/EC. That right was contingent upon his wife undertaking the activities specified in Article 7(1) (a), (b), (c) or (d). When his wife ceased working in the State during the initial five year period of her residence, the applicant’s derived right to remain was extinguished unless he brought himself within one of the exceptions contained in Articles 12(3) or 13(2). 33. The EU citizen wife left the State sometime in 2010 and returned to France. Although the applicant remains married to her, he is not divorced and therefore he has no right to remain in the State and the Minister was correct in revoking his residence permit. Article 12(3) does not provide for retention of residence for non-EU family members on the departure from the host state of the Union citizen. The clear exception to this principle is designed to protect school-going children of the Union citizen, regardless of their nationality, upon the departure of the Union citizen from the host Member State. This, the Minister argues, is designed to protect a vulnerable sector of society who may well, due to their tender age, have integrated into the society of the host Member State despite the brevity of their residence in that state, but that qualified right has no application to the applicant in this case. 34. The Minister further contends that the triggering event for the right of retention in Article 13(2) is not the initiation of divorce or annulment proceedings, but the decree of divorce or annulment. 35. The respondent relied heavily on the Court of Justice’s reiteration of the purposes of Directive 2004/38/EC in its recent decision in Iida v. Stadt Ulm (C–40/11, 8th November 2012), where it held that a Japanese man married to a German national, who remained in Germany after his wife’s move with their child to Austria to take up employment, was not a beneficiary of the Directive as the husband had not accompanied or joined his EU national wife in Austria. The Court of Justice repeated that the purpose of the Directive, as previously stated in Metock, was to facilitate the freedom of movement of the Union citizen and at para. 64 it stated that, “[i]t thus follows that the right of a third-country national who is a family member of a Union citizen who has exercised his right of freedom of movement to install himself with that Union citizen pursuant to Directive 2004/38 can be relied on only in the host Member State in which that citizen resides”. 36. The Minister argues that the issue for determination in this case has already been considered in Shyllon (cited above), where Herbert J. held that “[t]he purported rights contended for by the applicant, which would have the effect of transforming a consequential right into a personal right and, would involve a very material interference with the sovereign right of this Member State to control its own borders, could only, in my judgment be created by a clear and express legislative provisions and, could not arise by way of inference or by implication.” In the Minister’s contention, the case law and legislation referred to in Shyllon are identical to those opened and determined in this case. The Minister further argues that the principle of effective interpretation cannot do violence to the terms of the Directive itself. 37. The Minister relies on a decision of the Court of Appeal in the case of Amos and Theophilus v. Secretary of State for the Home Department [2011] 1 WLR 2952 where non-EU nationals divorced from EU nationals asserted a right of permanent residence in the host State. Stanley Burton L.J. reviewed the relevant provisions of EU law including Regulation 1612/68/EEC and Directive 2004/38/EC as well as the case of Diatta (cited above) and interpreted the Directive as follows:
1. At all times while residing in this country until their divorce, their spouse must have been a worker or have been self-employed (or otherwise satisfy the requirements of Article 7(1). 2. Their marriages had to have lasted at least three years, including one year in this county. 3. They must be able to show that they are workers or self-employed persons or otherwise satisfy the requirement of the penultimate paragraph of Article 13(2) (see Okafor & Ors. v. Secretary of State for the Home Department [2011] 1 WLR 3071).” THE COURT’S ANALYSIS 40. It falls upon this Court in those circumstances to consider the meaning of Articles 12(3) and 13(2) and in particular the question of whether Article 13(2) (a) permits the applicant to establish a right independent of his wife to remain in the State. The Court’s interpretation must place the measures contained in those two Articles in their specific context within the spirit, history, object and purpose of the Directive and its general scheme, together with their specific wording and the case law of the Court of Justice. 41. There is no dispute that Ms A.S. is an EU national within the meaning of Article 2(1) of Directive 2004/38/EC and that the applicant as her husband is a “family member” within the meaning of Article 2(2). While the applicant’s wife was working in Ireland, the applicant and his wife were “beneficiaries” of the Directive within the meaning of Article 3. They had a right of entry into the State pursuant to Article 5 and they enjoyed an initial right of residence for three months pursuant to Article 6 subject only to visa and passport conditions. While Ms A.S. was working in Ireland they both had a right to reside in Ireland pursuant to Article 7. It is not disputed that after Ms A.S. departed Ireland, the applicant lost his derivative right to residence under Article 7 and that a right of residence could only be retained on an individual basis if he qualified under Articles 12(3) or 13(2). 42. The major point of difference between the parties is whether the applicant’s situation is solely governed by the departure provisions of Article 12(3), bringing his right to reside to an end or whether, irrespective of the departure of his wife, his situation may also fall to be determined under Article 13(2) where divorce provisions apply. The area of dispute is even more refined as it is common case that Articles 12(1) and Article 12(2) do not apply and that Article 12 (3) is the only departure provision of any potential application to Mr Lahyani as the non-EU spouse of a departed Union citizen. It is immediately clear that as the couple have no children, he cannot possibly retain his right of residence under that provision. Similarly, Article 13(1) and Article 13(2) (b), (c) and (d) are of no relevance as the circumstances envisaged do not arise. It seems to be common case that the only possible relief lies in retention of rights under Article 13(2) (a), as the facts establish the temporal pre-conditions of marriage insofar as the couple was married for at least three years including (it appears) at least one year spent in Ireland. 43. The question as it appears to the Court is therefore:
(i) irrespective of the departure of his Union citizen spouse from the host State and (ii) even though while de facto separated he has not yet obtained a decree of divorce? The History, Object and Purpose of Articles 12 and 13
2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment. 3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health: (a) to accept offers of employment actually made; (b) to move freely within the territory of Member States for this purpose; (c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action; (d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in regulations to be drawn up by the Commission. 4. The provisions of this Article shall not apply to employment in the public service.”
1. The following shall, irrespective of their nationality, have the right to install themselves with a worker who is a national of one Member State and who is employed in the territory of another Member State: (a) his spouse and their descendants who are under the age of 21 years or are dependants; (b) dependent relatives in the ascending line of the worker and his spouse. 2. Member States shall facilitate the admission of any member of the family not coming within the provisions of paragraph 1 if dependent on the worker referred to above or living under his roof in the country whence he comes. 3. For the purposes of paragraphs 1 and 2, the worker must have available for his family housing considered as normal for national workers in the region where he is employed […]. Article 11 Where a national of a Member State is pursuing an activity as an employed or self-employed person in the territory of another Member State, his spouse and those of the children who are under the age of 21 years or dependent on him shall have the right to take up any activity as an employed person throughout the territory of that same State, even if they are not nationals of any Member State. Article 12 The children of a national of a Member State who is or has been employed in the territory of another Member State shall be admitted to that State's general educational, apprenticeship and vocational training courses under the same conditions as the nationals of that State, if such children are residing in its territory. Member States shall encourage all efforts to enable such children to attend these courses under the best possible conditions.” 48. Directive 2004/38/EC, sometimes referred to as ‘the Citizenship Directive’ and at other times ‘the Free Movement Directive’, establishes rights on an incremental or ascending basis as is clear from recital 24 which states that “the greater the degree of integration of Union citizens and their family members in the host Member State, the greater the degree of protection against expulsion should be”. The initial right established by the Directive is a right for Union citizens and their family members, irrespective of nationality, to enter and reside in the host State for three months conditional only on visa and passport requirements (Articles 5 and 6). The next acquired right is a right of residence for longer than three months provided that the Union citizen is working or self-employed in the host Member State or has comprehensive sickness insurance and sufficient resources for his / her self and family members not to become a burden on the social assistance system of the host State (Article 7). The rights afforded by the Directive culminate for the first time in a right of permanent residence without conditions after five years of continuous lawful residence subject only to grounds of public policy, public security or public health (Article 16). 49. Article 12 more or less repeats previous rights and consequences in the event of the death or departure of the Union citizen while Article 13 establishes new rights not previously recognised in any EU legislation. Together the two Articles provide for autonomous rights for family members in the host state in the event of the death or departure of the Union citizen from the host State (Article 12) or in the event of a divorce, annulment or termination of a registered partnership (Article 13). Departure 51. Recital 15 to the Directive is relied upon by the applicant in support of his argument that persons in his situation where a marriage has broken down but a divorce has not been obtained require legal safeguarding. Its terms are set out at paragraph 24 above and clearly do not provide for the effect of departure. 52. The travaux préparatoires to the Directive confirm that with the exception of non-EU school-going children and their non-EU parents, Article 12 creates no autonomous rights for the family members in the event of the Union citizen’s departure from the host State. The Commission’s original Proposal (COM (2001) 257 final) states:
Divorce
1. […]. 2. Without prejudice to the second subparagraph, divorce […] shall not entail loss of the right of residence of a Union citizen's family members who are not nationals of a Member State where: (a) prior to initiation of the divorce […], the marriage […] has lasted at least three years, including one year in the host Member State; or (b) […]; or (c) this is warranted by particularly difficult circumstances, such as having been a victim of domestic violence while the marriage or registered partnership was subsisting; or (d) […]. […] Such family members shall retain their right of residence exclusively on personal basis.” (The Court’s emphasis) 57. It is not difficult to envisage circumstances where an interpretation which confines retained rights of residence exclusively to spouses who have obtained divorces while the Union citizen is exercising treaty rights in the host state might be unduly restrictive in light of the need to interpret the provisions of the Article 13 “with due regard for family life and human dignity and in certain conditions to guard against abuse” (recital 15). An example of how a strict interpretation of Article 13 might breach the object of the Directive and render it ineffective could be found where the non-EU spouse is deserted in the host state without any warning that the marriage was in difficulty and before the possibility of divorce arose. The object of the Directive is to facilitate the free movement of Union citizens and their family members and Articles 12 and 13 are clearly designed to provide for compassionate consequences when negative but predictable life events such as matrimonial breakdown, death and divorce occur. As the wording of Article 13 clearly demonstrates that a spouse,4 no matter what the nationality, retains a right to reside in the host state in the event of divorce, it would be unfair to exclude from Article 13 those non-EU spouses who through no fault of their own have not had the opportunity to obtain a divorce or even to obtain a final decree where, for instance, divorce proceedings were initiated but the Union spouse left before the process was complete so as to frustrate or upset the plans of the non-EU national. 58. There must be multiple variations of family breakdown where the Union citizen might depart the host state leaving the non-Union spouse behind. It would render the protections afforded by Article 13 ineffective if host states were to expel a deserted non-EU spouse before the expiry of a reasonable period during which the non-EU spouse could seek dissolution of the marriage with a view to claiming a personal right of residence under Article 13(2), subject to the Article 7 conditions which are applicable to divorced non-EU spouses. To revoke the lawful status of such non-EU spouses without affording an opportunity to seek a divorce would do a disservice to Article 13. If, to give another example, the non-EU spouse had already commenced divorce proceedings which were being pursued at the time of departure of the Union citizen and the interpretation urged by the Minister were applied, the non-EU spouse would face the choice of uprooting from the host country in which he was installed and, pending finalisation of the divorce, becoming the unwelcome guest of the estranged EU spouse in whatever EU State she went to, or of returning to his own country. That choice would seem contrary to the spirit and object of Article 13 and again, it seems to the Court it would be an unnecessarily restrictive interpretation of that Article. 59. Another consideration which leads the Court to this view is that divorce may not always be an available option to the parties to a marriage which has irretrievably broken down as procedural requirements differ enormously from state to state within the EU. Divorce proceedings in Ireland are governed by constitutional provisions and are restrictive. There is an absolute requirement that the parties must have been separated for a minimum of 4 years out of the previous five years before matrimonial proceedings for a decree of divorce can be commenced. Even judicial separation requires a minimum period of 12 months separation before the institution of proceedings and even so, a judicial separation may not be sufficient to trigger rights under Article 13. In other member states where agreement is reached on a division of property and there are no children, a consent divorce can be obtained in a matter of months. That is not an option in this State. If Directive 2004/38/EC is intended to apply uniformly across the Member States without discrimination, then a spouse of a migrant Union citizen should not be prejudiced in his / her right to benefit from Article 13 by the choice of host state made by the Union citizen and the domestic law relating to dissolution of marriage in that state. 60. It is therefore the view of this Court that Article 13 must be interpreted expansively to provide for the occasions where marriages and civil partnerships do not work out and where the Union worker simply deserts and quits the host state before matrimonial proceedings are contemplated. Each case must be determined by its own facts and a measure of discretion applied to allow for the almost infinite variations in the way that genuine relationships and marriages disintegrate. Having expressed that view, the Court is equally convinced that it cannot be the general rule as postulated by the husband that departure of the Union citizen worker confers either an indefinite or permanent right of residence while the deserted non-EU spouse considers his / her options and whether or not divorce is being contemplated. The wide interpretation of Article 13 – with due regard for human dignity and to prevent abuse – must be restricted to genuine marriages and genuine irretrievable breakdown of relationships. As the Court has already noted, if the relationship has not broken down irretrievably, the non-EU spouse is expected to leave the host state and travel with the Union citizen. Application to this Case
63. While an expansive and purposive interpretation of Article 13 would undoubtedly allow a reasonable period for a vulnerable deserted spouse to regulate his or her affairs in order to benefit from the clear intention to protect divorced spouses contained therein, 18 months was not a reasonable period in the circumstances of this case. The only information as to Ms A.S.’s intentions when she departed her husband was provided by the husband when he stated to the Minister that she had left permanently. He cannot resile from the fact that no steps were taken to effect a divorce in France, Morocco or Ireland in the period after her departure notwithstanding that, as the Court was informed, Mr Lahyani is now in a relationship with an Irish woman whom he hopes to marry once his divorce from Ms A.S. is finalised. 64. The Court also recalls that leave was granted by Cooke J. to seek declarations that (a) for so long as his divorce petition is pending and is being prosecuted expeditiously by him, and is not dismissed, the applicant retains his right of residency in the State and (b) that the Minister’s purported termination of that right was unlawful. At the date of the revocation of his right of residence, the husband was not divorced, had taken no steps to obtain a divorce, there was no divorce petition pending which was being prosecuted expeditiously or otherwise and further, he had disengaged with the Minister during the 12 month period after he was first asked if he had commenced divorce proceedings. His application fails on simple judicial review principles as he has not made out the grounds on which leave was granted. 65. For the sake of completion, the Court is satisfied that no difficulties arise with the interpretation of Article 13(2) where, although separated and seeking a divorce, both spouses continue to reside in the host state and where the Union citizen is continuing to work or is self-sufficient. In accordance with the principle set down in Diatta (cited above), the non-EU spouse retains a derivative right of residence at all times up to the finalisation of the couple’s divorce, provided that the Union spouse is resident in the host state and exercising free movement rights. Once the divorce is finalised, working or self-sufficient non-EU spouses gain a personal right of residence under Article 13(2), irrespective of whether the Union citizen continues to reside and exercise free movement rights in the host state, in the same way that death and departure provisions apply to family members of the EU worker previously living and working in the host state. Article 13 is a new departure in free movement rights which, when read with recital 15 to the Directive, is clearly intended to protect non-EU spouses from being obliged to leave the host state because their legal status in the host state has been altered by the dissolution of their marriages. The Article is clear – divorce obtained while the Union citizen is exercising free movement rights in the host state does not adversely affect the right of the non-EU spouse to reside in the host state, provided that the marriage has lasted for at least three years with at least one of those years in the host state before the divorce proceedings were commenced and provided that the non-EU spouse is not a burden on the state. In the period between commencing such proceedings and the final decree, the parties are still legally married even if living apart (see Diatta) and the non-EU spouse retains his / her derivative right of residence until the divorce is finalised, at which point he or she gains a right of residence under Article 13 on an exclusively personal basis. There is also a parallel right to return with the Union spouse to his or her home state, while the marriage is subsisting. The Court of Justice has held in Surinder Singh (C-370/90, 7th July 1992) [1992] ECR I-04265 and Minister voor Vreemdelingenzaken en Integratie v. R.N.G. Eind (C-291/05, 11th December 2007 [GC]) [2007] ECR I-10719 that the family members of a Union citizen who has exercised his right to free movement in a host State and who has returned to his home State are entitled to equivalent rights in the home State as they enjoyed in the host State. The Court explained the rationale behind this principle as follows in Eind:-
36. That deterrent effect would also derive simply from the prospect, for that same national, of not being able, on returning to his Member State of origin, to continue living together with close relatives, a way of life which may have come into being in the host Member State as a result of marriage or family reunification. 37. Barriers to family reunification are therefore liable to undermine the right to free movement which the nationals of the Member States have under Community law, as the right of a Community worker to return to the Member State of which he is a national cannot be considered to be a purely internal matter.” 67. Notwithstanding those protections, difficulties may arise in situations where a deserted spouse may not know where his / her Union citizen spouse is or the marriage may have broken down to such an extent that he / she is simply not welcome to join the Union citizen in another Member State or in the Union citizen’s home state and the cooperation of that spouse to complete immigration forms or to participate in matrimonial proceedings is not available. It would be contrary to the spirit of the Directive and the clear terms of recital 15 if Article 13 was read so restrictively that such a vulnerable non-EU spouse would be immediately liable to expulsion upon the departure of the Union citizen from the host state. The non-EU spouse in such a situation can ensure continuity of legal residence in the host state by informing the appropriate immigration authority of the change in status and ensuring that divorce proceedings are commenced and prosecuted expeditiously. 68. However, it is simply not feasible that Articles 12 and 13 could ever be interpreted to permit a non-EU spouse to remain for an indefinite period and at any time after the departure commence divorce proceedings as argued by the applicant herein. A non-EU citizen cannot elect to stay in the host state after the Union citizen has departed on the basis that he might someday consider if, when or how to obtain a divorce as occurred in this case where no attempt was made by the husband to notify the Minister that his wife had ceased working and left. It was the Minister who made his own enquiries putting the husband on notice that his legal position was precarious and that divorce was an issue. His letter did not provoke any action by the husband to leave, follow his spouse or commence divorce proceedings. In fact, no action was taken relating to his matrimonial status until after he was notified that his derivative right to reside under Article 7 was revoked. 69. The several decisions to which the court was referred including Amos and Theophilus (cited above) and Okafor (cited above), decisions of the Court of Appeal; Iida (cited above) and Ziolkowski, Szeja & Others v. Land Berlin (C-245/10 and C-246/10, 21st December 2011 [GC]), decisions of the Court of Justice, were not of any real assistance as they all deal with the right to permanent residence. The issue of permanent residence does not arise in this case. While not an issue for determination in this case, it is nevertheless interesting to note that the UK Court of Appeal in Okafor took a strict view of the circumstances in which non-EU family members may acquire a right of permanent residence when it found the exercise of a right of residence under Article 12(3) does not create any entitlement to a right of permanent residence. The Court of Appeal held that a custodial parent and children in full time education have no autonomous right to permanent residence in the host state once their education has been completed. They first had to establish five years continuous lawful residence by the Union citizen prior to claiming such a right. As the Union citizen in Okafor had not been exercising treaty rights for any of the period of five years before her death in the UK, her family did not acquire an entitlement to permanent residence. However, it should be noted that this restrictive interpretation of the right to permanent residence is not a decision of the Court of Justice. 70. Further, the Court agrees with Dr Forde S.C., counsel for the applicant herein, that the decision in Shyllon (cited above) is not binding as the primary preliminary issue was whether circumstances existed for an extension of time to commence judicial review proceedings and therefore the substantive issues in the case were outlined rather than fully argued. Similarly, the Court is not assisted by the findings made by Stanley Burnton L.J. in Amos and Theophilus. 71. The Court is, however, assisted by the reasoning of the Court of Justice in Diatta, Singh and Metock (all cited above) which provide for the protection for the non-EU spouses of Union citizens and outline the extent of those rights. In Diatta, the Court of Justice held:
19. In addition such an interpretation corresponds to the spirit of Article 11 of the regulation, which gives the member of the family the right to take up any activity as an employed person throughout the territory of the Member State concerned, even though that activity is exercised at a place some distance from the place where the migrant worker resides. 20. It must be added that the marital relationship cannot be regarded as dissolved so long as it has not been terminated by the competent authority. It is not dissolved merely because the spouses live separately, even where they intend to divorce at a later date.”
75. Having found as outlined above that this Court believes that in certain circumstances such as the desertion by departure from the host state by the Union citizen before divorce proceedings were in being and where divorce subsequently becomes an objective, where divorce proceedings are contemplated but have not been commenced or where such proceedings have been commenced but not completed, it would be too restrictive and would render the protection provided by Article 13(2) (a) ineffective if a reasonable period were not afforded to the non-EU spouse to commence divorce proceedings. 76. Even if the Court has fallen into error in its interpretation, the key decision in this case is that the applicant’s challenge fails as at the time of the impugned decision, notified by letter of the 9th November, 2011, the marriage was not dissolved, no proceedings had been commenced, no discernible steps had been taken to commence such proceedings, the Union citizen was no longer exercising her free movement rights in Ireland and she had departed Ireland in July or August 2010 with no intention of returning or reuniting with the applicant. 77. The Court is conscious that on any wide interpretation of the Directive, there is potential for third country nationals to abuse the system and that it would be counterproductive to interpret the Directive in a manner which could facilitate such abuse. However, Member States are not powerless in this regard. As noted by the Court of Justice in Metock, among other cases, Member States have ample capacity to tackle situations of abuse under Article 35 of Directive 2004/38/EC which reflects the well-established principle that EU law cannot be relied on in cases of abuse. This is also reflected in recital 28 to the Directive which states that “To guard against abuse of rights or fraud, notably marriages of convenience or any other form of relationships contracted for the sole purpose of enjoying the right of free movement and residence, Member States should have the possibility to adopt the necessary measures.” 78. The Court of Justice has held that abuse may be defined as an artificial conduct entered into solely with the purpose of obtaining rights under EU law which, albeit formally observing of the conditions laid down by EU rules, does not comply with the purpose of those rules {see e.g. Emsland-Stärke GmbH v. Hauptzollamt Hamburg-Jonas (C-110/99, 14th December 2000) [2000] ECR I-11569; Centros Ltd v. Erhvervs- og Selskabsstyrelsen (C-212/97, 9th March 1999) [1999] ECR I-01459}. In this case, suspicions may have been raised by the letter written by Ms A.S. to the Minister and following the report of Detective Superintendent McMahon, as Ms A.S. complained that the applicant entered into marriage with her solely for the purpose of obtaining a right of residence in Ireland under the Directive. The veracity of this information has not been established but it was a clear basis for suspicion as to the husband’s bona fides and could reasonably have triggered an investigation under Regulation 24 of S.I. No. 656 of 2006, which transposes Article 35 into Irish law. While it is obvious that suspicions of abuse linger in this case, nothing was done to investigate the validity of the assertions. The Court has therefore had no regard to the obvious undercurrent of mistrust in the Minister’s representations. 79. Similarly, while no information generated after the 9th November, 2011 is relevant to this judicial review, both parties introduced the following as information supporting their opposing arguments. The Court has ignored this information in arriving at its conclusions but considers that the information should nonetheless be outlined. Events since the revocation 81. The Minister was later informed that the husband filed for divorce in Morocco5 on the 28th December, 2011, but that the proceedings have not progressed and he does not yet have a decree of dissolution of his marriage. A translation of his petition states that divorce is sought on the basis of the wife’s desertion and neglect of her husband. Further correspondence from his solicitors suggested that the proceedings would be completed in five months but his presence in Morocco was required to sign the documents before his divorce could be finalised. It was submitted to the Court that the husband has not gone to Morocco as he now has no permission to re-enter this State once he leaves. The Court was not prepared to accede to a subsequent application to order the Minister to allow his re-entry into the State so he could go to Morocco to obtain a divorce. 82. Correspondence dated the 26th January, 2012 introduced more information not previously before the Minister. It was stated for the first time that the wife Ms A.S. had actually petitioned for a divorce on the 9th August, 2010. A translated copy of an Order of the Family Division of the Court of First Instance in Taza, Morocco dated the 29th December, 2011, was furnished. That document recites that “the case was called for hearing on September 20th 2010 but the Plaintiff did not appear and that in accordance with Article 81 of Family Law she is considered as having waived her petition.”6 83. The parties then engaged in an exchange of correspondence where their respective positions were maintained up to and including these proceedings. 84. In written submissions as to why he should not make a removal order, the Minister was informed that the husband was now in a relationship with Ms J.K. an Irish national who was due to give birth to their child in August 2012 and that he hoped to marry her as soon as his divorce was finalised. In the light of the anticipated birth, submissions were also made under Zambrano (Case C-34/09, 8th March 2011) [2011] ECR I-01177 for leave to remain. 85. There is no evidence that a removal order was ever made and when the case came before this Court some time after the hearing, no information was available as to the status of the Zambrano application. Conclusion
(ii) In the circumstances of this case, no. In other circumstances, if the EU spouse deserted and left the host state, Article 13(2) (a) of Directive 2004/38/EC must allow the non-EU spouse a reasonable time to commence and prosecute divorce proceedings before rights of residence are revoked. 2.Until his right of residence was revoked, the husband was free to travel in and out of the state. 3.See e.g. Council Directive 68/360/EEC of 15 October 1968 on the abolition of restrictions on movement and residence within the community of Member States and their families, Council Directive 73/148/EEC of 21 May 1973 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services, Council Directive 90/364/EEC of 28 June 1990 on the right of residence, Council Directive 90/365/EEC of 28 June 1990 on the right of residence for employees and self-employed persons who have ceased their occupational activity and Council Directive 93/96/EEc of 29 October 1993 on the right of residence for students. 4.In the case of non-EU nationals after a marriage of at least three years duration of which at least one year was spent in the host state before the issue of divorce proceedings. 5.The divorce seems to have been filed through Moroccan attorneys suggesting no impediment to the same action taken being taken in 2010. 6.It is noted that the petitioner and respondent were described as domiciled at two different addresses in Taza while it is very probable that neither was domiciled there. The husband did not provide any evidence that he engaged in the divorce by consenting, going to Morocco or otherwise.
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