The High Court has deferred judgment in two judicial review cases brought by non-EU spouses whose applications for Irish residence cards were refused. Ms Justice Finlay Geoghegan said she needed a pending ruling from the Court of Justice of the European Union before deciding the cases.
The applications, heard together on 17 April 2008, challenge refusals made under an Irish regulation requiring evidence that the non-EU spouse had been lawfully resident in another EU member state before coming to Ireland. Both spouses had entered Ireland on visas marked “join EU spouse” and applied for residence cards under EU free-movement rules.
The cases were brought by Zuzana Gogolova, a Slovak citizen, and her Peruvian husband, Edilberto Santiago Valcarcel Nina; and Barbara Amoatong, a Dutch citizen, and her Ghanaian husband, Peter Ennim. The couples married outside Ireland. The EU-citizen spouses were living and working in Ireland.
The applicants seek orders quashing the refusals and requiring the Minister for Justice, Equality and Law Reform to issue residence cards. Their claims for damages were left over until the court determines the other applications.
Both non-EU applicants had meanwhile received permission to remain and work in Ireland under national “stamp 4” arrangements. The judge noted that this status differed from a residence card under the EU directive, including in the applicants’ ability to travel within the EU and return to Ireland without needing visas.
The central legal question is whether EU law permits a member state to require a non-EU spouse to have been lawfully resident in another member state before joining an EU-citizen spouse in the host state. That question had already been referred to the EU court in a separate case, Metock and Others v Minister for Justice, Equality and Law Reform, and was scheduled for an accelerated hearing on 3 June 2008.
The applicants also argued that provisions of the EU directive were sufficiently clear and unconditional to be relied on directly against the State, supporting their request for orders to issue the cards. The Minister’s position was that the directive allowed discretion to impose the prior-residence requirement. The judge said the dispute over direct effect depended on the answer to the question already referred in Metock.
The court did not make a separate reference to the EU court in these cases. It reserved judgment until the ruling in Metock and directed that a copy of the interim decision be sent to the EU court. The High Court did not decide whether the refusals were unlawful or whether either applicant was entitled to a residence card.