Zada -v- MJELR Anor
Neutral citation: (2010) IEHC 341.
High Court
Judgment was delivered on October 1st, 2010, by Mr Justice John Cooke.
Judgment
The EU council directive 2004/ 38/EC and subsequent regulations on the free movement of persons mean a non-EU national spouse of an EU citizen living and working in Ireland must produce a passport to obtain a residence card in the State.
Background
Dana Hassad Zada is an Iranian who came to Ireland in September 2005 and applied unsuccessfully for asylum. Alina Sirkovskaja came to Ireland from Estonia in January 2005 and has worked and lived here legally as an EU citizen since. In February 2007, the couple married.
In December 2008, the applicant applied for a residence card under Article 9 of the 2004 directive, enclosing his national identity card. He said he did not have a passport and never had one. His application was accepted on condition he produced a valid passport. In May 2009 he attended a Garda station with his national identity card and requested his residence card, which was refused on the basis he did not produce a passport.
In July that year, his solicitor wrote to the immigration officer and explained the applicant had suffered persecution in Iran and was afraid if he approached the Iranian embassy in Dublin, his family in Iran would be at risk.
As he still did not receive the residence card, judicial review proceedings got under way. In October he obtained leave to judicially review the decision, seeking an order forcing the Minister to issue the card and declarations the Minister’s requirement that he produce a passport was disproportionate and ultra vires the EC regulations of 2006 and 2008 and/or the 2004 directive.
He also sought a declaration that he be allowed to prove his identity by his national identity card or any alternative means.
Decision
Mr Justice Cooke said under the directive and the regulations, an EU citizen could visit any EU state for a period of three months, and stay longer under certain conditions, including if the person was in employment. He or she needed to hold a valid identity card or passport.
This right extended to family members, whether citizens of another EU state or not. The only difference was that different administrative formalities existed where the family member was not an EU citizen.
He pointed out that member states must issue a residence card to the family members and “shall require presentation of the following documents: (a) a valid passport”; documentary proof of the family relationship and proof of residence in the State of the EU citizen.
He said there was a clear distinction between the formality prescribed for a family member who was a Union citizen and one who was not; the former has alternative means of establishing identity, while the latter did not.
He agreed the Minister was correct in holding that Article 10.2, detailing this requirement, was binding on him.
It was clear the directive was explicitly and deliberately departing from the basis upon which the earlier legislation had been formulated. The court was therefore satisfied the respondent Minister was correct; he was obliged to insist on the production of a passport.
“It follows that illegal entry to the State (in the sense of entry on the basis of an application for asylum held to be unfounded) and the subsequent passage of more than three months presence in the State cannot be relied upon to avoid the necessity to comply with a condition which otherwise applies to all qualifying family members who are not nationals of a member state of the Union,” the judge said.
No evidence had been adduced that the applicant’s family would be at risk were he to seek a passport from the Iranian embassy nor was there any evidence that he would be unable to obtain a passport as a “draft evader” in Iran. While the applicant faced a dilemma as an unsuccessful applicant for asylum now unlawfully present in the State, it was not the function of the EU directive and regulations to resolve difficulties immigrants may have created for themselves by the pursuit of unsuccessful claims for asylum.
Anthony Lowry BL, instructed by Kelleher O’Doherty, for the plaintiff; Daniel Donnelly BL, instructed by the Chief State Solicitor, for the State.