Metock case

The Metock case was a groundbreaking European Court of Justice case of major political significance, especially in Ireland and Denmark.

Metock, a national of Cameroon, arrived in Ireland on 23 June 2006 and applied for asylum. His application was definitively refused on 28 February 2007.

Ngo Ikeng, born a national of Cameroon, acquired United Kingdom nationality. She resided and worked in Ireland since late 2006.

Metock and Ngo Ikeng met in Cameroon in 1994 and had been in a relationship since then. They had two children together, one born in 1998 and the other in 2006. They were married in Ireland on 12 October 2006.

On 6 November 2006, Metock applied for a residence card as the spouse of a European Union citizen working and residing in Ireland. The application was refused by decision of the Minister for Justice on 28 June 2007, on the grounds that Mr Metock did not satisfy the condition of prior lawful residence in another Member State required by Regulation 3(2) of the European Union (Free Movement of Persons) Regulations (s.I. 226 of 2006).

Metock, Ngo Ikeng and their children brought proceedings against that decision. The European Court of Justice ruled in favour of the family.

This decision followed on from that in the case of Hacene Akrich [2003] which regarded an illegal immigrant who, following two previous deportations from the United Kingdom, came into the country illegally and evaded the authorities for long enough to enable him to marry a British citizen. He was soon after deported to Dublin, where his wife happened to be working, where he remained for six months. Following this he attempted to return to Great Britain where his wife had secured employment. Both Mr and Mrs Akrich were questioned by the UK Embassy in Dublin, whence it emerged that they had always intended to return to the UK, "because [they] had heard about EU rights, staying six months and then going back to the UK". It was thus clear that the period spent in Ireland had been part of a ploy to gain residence rights in the United Kingdom in evasion of British legislation.

However, the ECJ decided that notwithstanding the fact Akrich was an illegal immigrant when he had married they must take into account the right to respect for family life under Article 8 of the ECHR as enshrined in Directive 2004/38/EC. This meant that “a non-Community spouse of a Union citizen who accompanies or joins that citizen can benefit from the directive, irrespective of when and where their marriage took place and of how that spouse entered the host member state.” Akrich was thus able to enter the UK with his wife and take up employment. The initial illegal residence or entry was no bar to claiming European rights of establishment.

The European Court of Justice thus removed almost all bars to immigration and puts the legislation of certain Member States under threat - notably Belgium, where the recently passed legislation has several bars on immigration including requirements for periods of lawful residence in another Member State prior to the application for residency. They have been criticised for being overly judicialy active, and eroding the Parliamentary sovereignty of Member States much further than was intended under the Treaties. The fact that a person illegally enters a country is not a bar to residency - it is thus possible for schemes to be engineered in which illegal entry followed by marriage to a national allows anyone to gain a right of residency. This right of residency can be converted into European Union citizenship after five years under Directive 2004/38/EC, a concept which gives the further right to bring into the country any dependants such as parents, children or even grandparents and cousins.

See also

• Directive 2004/38/EC on the right to move and reside freely

References

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62008J0127:EN:HTML

External Links

• European Union (Free Movement of Person) Regulations (S.I. 226 of 2006)
• European Union (Free Movement of Person) (No. 2) Regulations (S.I. 656 of 2006)
• European Union (Free Movement of Person) (Amendment) Regulations (S.I. 310 of 2008)