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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Igunma -v- Governor of Wheatfield Prison & ors [2014] IEHC 218 (29 April 2014)
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Cite as: [2014] IEHC 218
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Judgment Title: Igunma -v- Governor of Wheatfield Prison & ors Neutral Citation: [2014] IEHC 218 High Court Record Number: 2014 574 SS Date of Delivery: 29/04/2014 Court: High Court Composition of Court: Judgment by: Hogan J. Status of Judgment: Approved |
Neutral Citation: [2014] IEHC 218 THE HIGH COURT [2014, No. 574SS] IN THE MATTER OF AN INQUIRY PURSUANT TO ARTICLE 40.4.2 OF THE CONSTITUTION BETWEEN/ PARRY IGUNMA APPLICANT AND
GOVERNOR OF WHEATFIELD PRISON, MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERAL RESPONDENTS JUDGMENT of Mr. Justice Hogan delivered on the 29th April, 2014 1. This application for an inquiry under Article 40.4.2 into the legality of the applicant’s detention raises once again difficult questions concerning the interpretation of the Free Movement Directive, 2004/38/EC (“the 2004 Directive”) and the relevant transposing Regulations, European Communities (Free Movement of Persons) Regulations 2006 (“the 2006 Regulations”). The procedural history of the application 3. The applicant was renewed before me on the following day, April 3rd. It is only proper to record that counsel for the applicant, Mr. McMorrow, made full disclosure to me of the earlier application to McGovern J. and the abortive application to MacEochaidh J. By this stage, the applicant’s legal team was in a position to file far more extensive affidavits and canvass more elaborate arguments. Anxious to ensure that this application for an inquiry remained within the parameters of the right to go from judge to judge under Article 40.4.2 as determined in my own judgment in Joyce v. Governor of the Dóchas Centre [2012] IEHC 326, [2012] 2 I.R. 666, I directed that the respondents be put on notice of these facts. The respondents raised no jurisdictional issues and being myself satisfied that this application did come within the parameters of Joyce, I decided to entertain this application and I accordingly directed the appropriate inquiry. The background facts 5. The applicant has been required from time to time to present at the offices of the Garda National Immigration Bureau at Burgh Quay, Dublin 2. It is acknowledged that he did so, but complaint is made that when he presented on 2nd April 2014 he was arrested by Detective Garda Conroy under s. 5(1)(a) of the 1999 Act(as amended by s. 10(b) of the Illegal Immigrants (Trafficking) Act 2000). This provides:
(a) has failed to comply with any provision of the order or with a requirement of a notice under s. 3(3)(b)(ii)…. he or she may arrest him or her without warrant and detain him or her a prescribed place.” 7. The essential issue in the case is a different one. It is accepted that the applicant married a Czech national, Ms. Zuzana Benakova, on 23rd February 2011 in Navan, Co. Meath. No suggestion has been made that this marriage was a marriage of convenience or that it is not otherwise a valid and effective marriage. In the wake of this Mr. Igunma then applied for residency in the State on 15th March 2011 based on his marriage to an EU national who had exercised her Treaty rights to establish herself in this State. 8. This application was originally refused on 25th August 2011 on the ground that it was found that Ms. Benakova was not exercising her EU Treaty rights to pursue a course of study here (as had been claimed). Inquiries had disclosed that that she had not attended her course since March 2011 and that the college in question was not on the international register maintained by the Department. This all suggests, however, that as of the date on which the parties had married in February 2011, Ms. Benakova was then at that point exercising her EU free movement rights, specifically by attending a course of further education in the State, whatever may have been the situation at a later stage. 9. Mr. Igunma then sought a review of that decision in which he stated that Ms. Benakova was then attending another college. It appeared that Ms. Benakova had only intermittently attended this other college, with an attendance rate of some 50%, although she also supplied a medical certificate which covered her absence from 26th September 2011 to 16th October 2011. Inquiries conducted by the Department with teaching staff suggested that Ms. Benakova was escorted by the applicant to the class, apparently under some duress. There were further suggestions that the marriage had flounded and that Ms. Benakova had subsequently found a new boyfriend. This decision was upheld on 21st December 2011. 10. Mr. Igunma for his part says that Ms. Benakova was involved in a workplace accident which incapacitated her. Although he encouraged here to attend school, she complained that she could not sit down for too long and she did not want to attend. This was essentially why a residence card was refused. It is, however, not in dispute but that Ms. Benakova moved out of the family home in 2012 and she has rebuffed all entreaties from Mr. Igunma ever since. I was informed at the hearing that Ms. Benekova is currently in receipt of disability allowance. 11. I should say, incidentally, that I was never informed of the date on which Ms. Benakova arrived in the State. It may well be that she could be able to claim in her own right an autonomous right of permanent residence by virtue of five years’ continuous residence here for the purposes of Article 16 of the Directive. 12. At all events, the review process regarding the residence card culminated in two further reviews conducted within the Department of Justice and Equality in November, 2012 and December, 2012 respectively following a fresh application made in that behalf by Mr. Igunma on 18th January, 2012. These reviews affirmed the earlier decisions to refuse the residence card on the ground that Ms. Benakova was not exercising her free movement rights at the date of that original decision in August 2011. While noting that a deportation order remained in force against the applicant, the official in the EU Treaty Rights Review Unit concluded his decision of 8th November 2012 by noting that:
14. This is, accordingly, the critical question in this case. In effect, the question is whether Mr. Igunma is a person to whom the provisions of 2004 Directive and 2006 Regulations still apply for the purposes of physical removal from the State, even if it is accepted that he has not established any right of residence here under the 2004 Directive. Directive 2004/38/EC
17. Article 3(1) originally provided that “these Regulations shall apply to -
(a) Union citizens, (b) qualifying family members of Union citizens, who are not themselves Union citizens, and-
(ii) who seek to join those Union citizens, in respect of whom they are family members, who are lawfully in the State…”
92. It makes no difference whether nationals of non-member countries who are family members of a Union citizen have entered the host Member State before or after becoming family members of that Union citizen, since the refusal of the host Member State to grant them a right of residence is equally liable to discourage that Union citizen from continuing to reside in that Member State. 93. Therefore, in the light of the necessity of not interpreting the provisions of Directive 2004/38 restrictively and not depriving them of their effectiveness, the words 'family members [of Union citizens] who accompany them' in Article 3(1) of that directive must be interpreted as referring both to the family members of a Union citizen who entered the host Member State with him and to those who reside with him in that Member State, without it being necessary, in the latter case, to distinguish according to whether the nationals of non-member countries entered that Member State before or after the Union citizen or before or after becoming his family members. 94. Application of Directive 2004/38 solely to the family members of a Union citizen who 'accompany' or 'join' him is thus equivalent to limiting the rights of entry and residence of family members of a Union citizen to the Member State in which that citizen resides. 95. From the time when the national of a non-member country who is a family member of a Union citizen derives rights of entry and residence in the host Member State from Directive 2004/38, that State may restrict that right only in compliance with Articles 27 and 35 of that directive. 96. Compliance with Article 27 is required in particular where the Member State wishes to penalise the national of a non-member country for entering into and/or residing in its territory in breach of the national rules on immigration before becoming a family member of a Union citizen. 97. However, even if the personal conduct of the person concerned does not justify the adoption of measures of public policy or public security within the meaning of Article 27 of Directive 2004/38, the Member State remains entitled to impose other penalties on him which do not interfere with freedom of movement and residence, such as a fine, provided that they are proportionate…….. 98. Third, neither Article 3(1) nor any other provision of Directive 2004/38 contains requirements as to the place where the marriage of the Union citizen and the national of a non-member country is solemnised. 99. The answer to the second question must therefore be that Article 3(1) of Directive 2004/38 must be interpreted as meaning that a national of a non-member country who is the spouse of a Union citizen residing in a Member State whose nationality he does not possess and who accompanies or joins that Union citizen benefits from the provisions of that directive, irrespective of when and where their marriage took place and of how the national of a non-member country entered the host Member State.”
Is the scope of application of the 2004 Directive contingent on proof of residency rights? 24. Chapter III of the Directive deals with the right of residence. Article 6 gives EU nationals and their spouses a right of residence for up to three months. Article 7 gives such EU nationals (and their spouses) a right of residence beyond that period where they are either workers or self-employed or, for example, they are engaged in a course of study. Chapter IV (Article 16 et seq.) deals with the right of permanent residence, which in principle Union citizens (and their spouses) who have resided legally for a continuous period of five years in the host Member State will enjoy. 25. Chapter VI (Article 27 et seq.) then deals with restrictions on the right of entry and the right of residence on grounds of public policy, public security or public health. Thus, Article 27(1) provides that:
27. Article 28(1) provides:
29. In the present case, of course, it must be accepted that the Department has validly refused to grant Mr. Igunma a right of residence because it was not satisfied that Ms. Benakova was genuinely following a course of study as of the date of that original decision in August 2011. This, however, is not quite the point so far as the application of Article 27 and Article 28 of the 2004 Directive is concerned, since what is critical is whether the person sought to be removed is a person to whom the Directive applies within the meaning of Article 3(1). 30. In the light, therefore, of the reasoning of the Court of Justice in Metock it seems clear beyond argument that the Mr. Igunma is a person to whom both Article 3(1) of the 2004 Directive and Article 3(1) of the 2006 Regulations applies simply by virtue of his marriage to Ms. Benakova, an EU national who has exercised free movement rights in this State. This continues to be so even if Mr. Igunma was validly refused a residence card. 31. The decision in Metock also makes it clear that it is immaterial for the purposes of 2004 Directive (and, therefore, by extension, the 2008 Regulations) that the parties married in this State only after Ms. Benakova herself arrived in this State. As Cooke J. explained in Decsi v. Minister for Justice and Equality [2010] IEHC 342:
33. It is, of course, true that Mr. Igunma has been refused a residence card (which refusal has, as we have seen, been upheld on appeal) with the result that, as Cooke J. noted in Decsi, the spouse of the EU citizen accordingly remains liable to have his entitlement to reside here revoked with retroactive effect as a result. But that is by no means the same thing as saying that he could then be deported as an illegal alien under the provisions of the Immigration Act 1999, since the entitlement of this State to remove the third country national would still be governed exclusively by the terms of the removal procedure in Article 20 of the 2006 Regulations (which transpose the relevant provisions of Article 27 and Article 28 of the Directive) because for all the reasons we have just discussed the applicant is nonetheless a person to whom the 2004 Directive applies. 34. Counsel for the State, Ms. Carroll, freely does not dispute much of this. She, however, maintains that the Supreme Court has decided to the contrary in an ex tempore judgment delivered by Fennelly J. in Rachki v. Governor of Cloverhill Prison on 5th December 2011 and that I am accordingly bound by that judgment. It is accordingly necessary to examine that judgment in order to ascertain what it determined. The decision in Rachki v. Governor of Cloverhill Prison 36. The applicant never sought to appeal or otherwise to seek a judicial review of this decision. In November 2011 Mr. Rachki was arrested on the same ground as in the present case, namely, that he failed to comply with the provisions of the 2009 deportation order. He then sought an order of release pursuant to Article 40.4.2 on the ground that his detention under the deportation order was unlawful. This application was refused in this Court by MacMenamin J. and the applicant accordingly appealed to the Supreme Court. 37. Fennelly J. summarised the issue for the Court in the following terms:
40. In these special circumstances it does not appear to me that Rachki is actually an authority on point. While the facts of that case were admittedly very similar to the present one - save that in Rachki the EU spouse had already left the State - and although Fennelly J. did say at the outset of his judgment that the deportation/removal issue was the critical one, the matter does not appear to have been further addressed. The ratio of the judgment appears to be the (with respect) entirely unexceptionable proposition that Article 40.4.2 proceedings could not be used as a vehicle where the validity of the refusal of the residence card could be indirectly challenged. Rather, the issue in Rachki was whether the applicant could be deported when he had - as he claimed - a free standing right of residence in the State. 41. At no stage, however, did the Court engage with the questions of whether a deportation order could be applied to a person to whom the 2006 Regulations applied, the effect of Chapter VI of the 2004 Directive and Article 20 of the 2006 Regulations or the implications of the Metock judgment. Since these questions do not appear to have been argued before the Court and were, in any event, simply not addressed at all in the judgment of Fennelly J., I have come most reluctantly to the conclusion that Rachki cannot be regarded as an authority on these questions the resolution of which has become central to the present case. Subject, of course, to the decision of the Court of Justice in Metock, these matters can accordingly be regarded as res integra. Conclusions 43. First, given that Mr. Igunma lawfully married a Czech national, Ms. Benekova, in February, 2011 at a time when she was exercising her EU Treaty rights by pursuing a course of study in the State, it follows that he is a person to whom the 2006 Regulations apply for the purposes of Article 3(1)(b) of the 2006 Regulations (and, for that matter, Article 3(1) of the 2004 Directive). 44. Second, in this respect it matters not that the applicant was subsequently refused a residence card or, indeed, that the marriage has now all but come to an end. Mr. Igunma’s failure to secure such a card might well be a factor which should be taken into account in assessing whether public policy requires his removal from the State for the purposes of Article 20 of the 2006 Regulations and Article 27 and Article 28 of the Directive, but this is not at present relevant. 45. Third, what is relevant is that once the 2006 Regulations apply to Mr. Igunma, he can thereafter only be physically removed from the State in accordance with the procedures prescribed by Article 27 et seq. of the 2004 Directive and the corresponding provisions of the 2006 Regulations. 46. Fourth, it follows from, in particular, paragraphs 95 and 96 of the judgment of the Court of Justice in Metock that a deportation order made prior to the marriage of the third country national to the EU citizen is ineffective unless it complies with the specific requirements of Article 27 of the 2004 Directive, which Article 20 of the 2006 Regulations seeks to reflect. Given, moreover, that there can be no question but that a deportation order made under the 1999 Act differs appreciably from a removal order made under Article 20 of the 2006 Regulations (and, by extension, Article 27 of the Directive) in terms of procedure, grounds and duration, it follows in turn that the deportation order made in 2009 cannot now be invoked as against the applicant following his marriage to Ms. Benekova in 2011. 47. It follows, therefore, that as the applicant’s detention is not in accordance with law, I must, therefore, order his release in accordance with Article 40.4.2 of the Constitution.
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