Metock v Minister for Justice, Equality and Law Reform
Nevertheless, the Irish legislation implementing the directive required the family member to demonstrate lawful residence within the European Union prior to first entry.The application was refused by decision of the Minister for Justice on 28 June 2007, on the grounds that Metock did not satisfy the condition of prior lawful residence in another member state.[12][13] The decision effectively over-ruled an earlier case Secretary of State for the Home Department v Hacene Akrich (2003) C-109/01 that the Irish government had relied on.In Akrich, in direct contrast to the later Metock case, the ECJ held that the initial unauthorised entrance could be used by national authorities to prevent someone from claiming European rights of establishment.[19] Regarding the issue of reverse discrimination arising from migrant citizens receiving more rights to family reunification than host member state nationals who have not exercised their right to free movement by taking up residence in another member state, the Court reiterated that settled case-law had established the so-called "wholly internal rule" and that the alleged discrimination thus fell outside the scope of European Community law.It was true that the Court had held in Akrich [50–51] that prior lawful residence in another member state was a requirement but that conclusion must be reconsidered as it was incompatible with MRAX [59] and Commission v Spain 2005 [28].Union citizens would be discouraged from exercising their right of free movement if they could not be accompanied or joined by their family, and consequently the Community was competent to rule on the issue.This would lead to variation of treatment across the Community incompatible with the objective of an internal market set out in Article 3(1)(c) of the Treaty on the functioning of the European Union.The Court replied that it was already established case-law that the alleged discrimination fell outside the scope of European Community law, citing Flemish Insurance [33].[33] The second question On the second question regarding the scope of the Citizenship Directive 2004/38, the Court noted in the first place that the Citizenship Directive 2004/38 aims to facilitate the exercise of the right of Union citizens to move and reside freely within the territory of member states and in particular recital 5 of its preamble provides that right, if it is to be exercised under objective conditions of dignity, should also be extended to family members irrespective of their nationality.Not to allow this right would discourage him from continuing to reside there and encourage him to leave to be able to lead a family life in another member state or in a non-member country.Member states are entitled to impose penalties, such as a fine, for other breaches so long as they are proportionate and do not interfere with freedom of movement and residence, as affirmed in MRAX [77].Austria, Cyprus, Czech republic and Slovakia, Denmark, Germany, Finland, France, Italy, Lithuania and the United Kingdom are amongst other member states that amended their legislation or policy as a result of Metock.Italy, however, decided to avoid reverse discrimination by granting their nationals the same rights of family reunification as their non-national Union citizens.The Netherlands has announced its intention to open negotiations at the European level to put an end to abuses of the so-called "Europe route" where a national migrates to another member state for a period of time so as to exercise his right of free movement and thus gain European Union rights of family reunification on his return, circumventing national restrictions.