ORDER OF THE PRESIDENT OF THE COURT
17 April 2008 (*)
(Accelerated procedure)
In Case C‑127/08,
REFERENCE for a preliminary ruling under Article 234 EC from the High Court (Ireland), made by decision of 14 March 2008, received at the Court on 25 March 2008, in the proceedings
Blaise Baheten Metock,
Hanette Eugenie Ngo Ikeng,
Christian Joel Baheten,
Samuel Zion Ikeng Baheten,
Hencheal Ikogho,
Donna Ikogho,
Roland Chinedu,
Marlene Babucke Chinedu,
Henry Igboanusi,
Roksana Batkowska
v
Minister for Justice, Equality and Law Reform,
THE PRESIDENT OF THE COURT,
having regard to the proposal of M. Ilešič, Judge-Rapporteur,
after hearing the Advocate General, M. Poiares Maduro,
makes the following
Order
1 This reference for a preliminary ruling concerns the interpretation of Directive 2004/38/EC of the European Parliament and of the Council 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 amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77, and corrigenda, OJ 2004 L 229, p. 35, OJ 2005 L 30, p. 27, OJ 2005 L 197, p. 34 and OJ 2007 L 204, p. 28).
2 The reference has been made in the course of four sets of judicial review proceedings before the High Court, in each of which application is made for inter alia an order of certiorari quashing the decision of the Minister for Justice, Equality and Law Reform (‘the Minister for Justice’), by which he refused to grant residence to a non-EU national married to a citizen of the Union living in Ireland.
3 In each of the four cases, which were joined for the purposes of the main proceedings, a non-EU national entered Ireland and lodged an asylum application, which was refused. Subsequent to his arrival in Ireland, the non-EU national married a national of another Member State who was living and working in Ireland. After the marriage, he applied for a residence card, which the Minister for Justice refused him. It is against that refusal that the spouses of the non-EU nationals in question and, in the case of Mr Metock and Ms Ngo Ikeng, their minor children brought the judicial review proceedings now pending before the High Court.
4 In addition, in the case of Mr Igboanusi and Ms Batkowska, the husband, a Nigerian national, is the subject of a deportation order made on 15 September 2005, prior to their marriage. In execution of that order Mr Igboanusi was arrested on 16 November 2007, that is subsequent to the marriage and the refusal of the Minister for Justice to grant him a residence card. On 13 December 2007, Mr Igboanusi and Ms Batkowska were granted leave to make the judicial review application which forms part of the main proceedings. On the same day, the High Court refused to grant an injunction restraining the Minister for Justice from deporting Mr Igboanusi. Mr Igboanusi was deported to Nigeria in December 2007.
5 The decisions of the Minister for Justice to refuse residence cards to Mr Metock, Mr Chinedu and Mr Igboanusi are based solely on the fact that each applicant was not in a position to provide evidence that he had been lawfully resident in another Member State prior to arrival in Ireland, as required by Article 3(2) of the European Communities (Free Movement of Persons) (No 2) Regulations 2006 (‘the 2006 Regulations’), which transposed Directive 2004/38 into Irish law.
6 By contrast, the decision of the Minister for Justice to refuse to grant a residence card to Mr Ikogho is based on the fact that he was unlawfully resident in Ireland at the time of his marriage to a citizen of the Union. The national court takes the view, however, that it must determine the issue of whether, in the course of reconsidering that decision, the Minister for Justice could apply the provisions of Article 3(2) of the 2006 Regulations to Mr Ikogho.
7 The applicants in the main proceedings claim that Directive 2004/38 precludes a requirement such as that set out in Article 3(2) of the 2006 Regulations and that that provision is invalid.
8 By its first question, the national court essentially asks the Court of Justice whether Directive 2004/38 precludes legislation of a Member State which grants a right of residence to a non-EU national, married to a citizen of the Union, only if, prior to coming to that Member State, the non-EU national was lawfully resident in another Member State.
9 In its decision, the High Court requests the Court of Justice to apply an accelerated procedure to this reference for a preliminary ruling, pursuant to Article 23a of the Statute of the Court of Justice and the first paragraph of Article 104a of the Rules of Procedure of the Court of Justice.
10 It is apparent from the first paragraph of Article 104a of the Rules of Procedure that, at the request of the national court, the President of the Court may exceptionally decide, on a proposal from the Judge-Rapporteur and after hearing the Advocate General, to apply an accelerated procedure derogating from the provisions of the Rules of Procedure to a reference for a preliminary ruling, where the circumstances referred to establish that a ruling on the question put to the Court is a matter of exceptional urgency.
11 In the present case, the national court points out, first, that the Minister for Justice receives several thousand applications for residence each year, so that the Court’s reply to the first question referred will affect, apart from the situation of the applicants in the main proceedings, that of a large number of other people. Furthermore, refusals to grant residence, on the basis of Article 3(2) of the 2006 Regulations, are giving rise to continuing applications to the High Court, which involves both significant costs for the Minister for Justice and applicants and a significant burden for that court’s budget. Finally, in a number of the proceedings, the applicants, who are not permitted to work because they do not have a right of residence, bring actions for damages relating principally to alleged loss of earnings. If the Minister for Justice should be found liable, then the longer the period prior to final judgment, the greater the amount of damages would inevitably be.
12 Second, the national court claims that the urgency also stems from the personal circumstances of the four applicant couples in the main proceedings. Mr Igboanusi and Ms Batkowska have been separated since the arrest of Mr Igboanusi in November 2007 and his deportation from Ireland in December 2007. The other three non-EU nationals in Ireland are there unlawfully and are therefore not permitted to work, which deprives their wives, of whom two have children, of the opportunity of leading a family life with a working spouse.
13 Indeed, in one of the cases in the main proceedings, a couple is deprived of any family life, and this has been so since Mr Igboanusi was arrested in November 2007 and deported to Nigeria in December 2007. In the other three cases in the main proceedings, while it is not apparent from the order for reference that the three non-EU nationals concerned are threatened with imminent deportation, it is nevertheless true that, together with their spouses who are Member State nationals, they are deprived of the opportunity of leading a normal family life. Since they have been refused the right to reside in Ireland, the non-EU nationals in question do not have the right to take up employment and are, pending the outcome of the main proceedings, in a situation of uncertainty as regards fundamental aspects of their family future.
14 The right to respect for family life within the meaning of Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950, is among the fundamental rights which, according to the Court’s settled case-law, are protected in Community law (Case C-60/00 Carpenter [2002] ECR I-6279, paragraph 41; Case C-109/01 Akrich [2003] ECR I-9607, paragraphs 58 and 59; and Case C-540/03 Parliament v Council [2006] ECR I-5769, paragraph 52).
15 In the present case, the Court is asked to interpret Directive 2004/38 with regard to the specific issue of whether that directive precludes a requirement that a non-EU national must previously have been lawfully resident in a Member State other than the host Member State, where such a requirement is imposed by the Irish legislation transposing that directive. The judgment of the Court will remove the uncertainty affecting the situation of the applicants in the main proceedings and, therefore, their family lives.
16 A reply from the Court within a very short period could, therefore, bring a swifter end to that uncertainty, which is preventing the persons concerned from leading a normal family life.
17 Those circumstances meet the condition of exceptional urgency referred to in the first paragraph of Article 104a of the Rules of Procedure.
18 Therefore, without it being necessary to examine the other grounds relied upon by the referring court, it is appropriate to apply the accelerated procedure to the present case.
On those grounds, the President of the Court hereby orders:
The accelerated procedure shall be applied to Case C-127/08 pursuant to Article 23a of the Statute of the Court of Justice and the first paragraph of Article 104a of the Rules of Procedure of the Court of Justice.
Luxembourg, 17 April 2008.