Chenchooliah (Citizenship of the Union - Opinion) [2019] EUECJ C-94/18

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(Reference for a preliminary ruling — Citizenship of the Union — Directive 2004/38/EC — Right of citizens of the Union and their family members to move and reside freely within the territory of a Member State — Beneficiaries — Third-country national who is the spouse of a Union citizen who has exercised his freedom of movement and then returned to the Member State of which he is a national where he is serving a prison sentence — Applicability of Directive 2004/38 to the expulsion of that third-country national — Scope of Article 15 and of Chapter VI)

III. Facts at the origin of the dispute in the main proceedings, questions referred for a preliminary ruling and procedure before the Court

A. Outline of the issue raised by the questions referred for a preliminary ruling

1. Applicability of Directive 2004/38 to Ms Chenchooliah’s situation and that of her Union citizen spouse

(b) Is the concept of a ‘beneficiary’ within the meaning of Article 3(1) of Directive 2004/38 static or dynamic?

(3) Evolving nature of the concept of a ‘beneficiary’ within the meaning of Article 3(1) of Directive 2004/38: the lessons to be drawn from the judgments in Metock and Others and Lounes

(c) The ‘lifecycle’ of the exercise of freedom of movement by a Union citizen and his family members under Directive 2004/38

(2) Key difference between the present case and the case which gave rise to the judgment in Lounes

(3) Expulsion of a third-country national spouse of a Union citizen continues to fall within the scope of Directive 2004/38 where that citizen has ceased exercising his freedom of movement in the host Member State on account of his return to the Member State of which he is a national

2. Restrictions and procedural safeguards applicable to the expulsion of Union citizens and their third-country national family members because their right of residence has expired

1. Does a third-country national, the spouse of a European Union citizen who has ceased exercising his right of free movement in a Member State on account of his return to the Member State of which he is a national, fall within the scope of Directive 2004/38/EC (2) for the purposes of her expulsion from the territory of the host Member State? Which provisions of that directive, if any, apply to her expulsion? Is that national covered by the provisions of Chapter VI or by those of Article 15 of that directive concerning the procedural safeguards applicable to expulsion decisions taken on grounds other than public policy, public security or public health?

2. These are the questions that lie at the heart of the present case, which will prompt the Court to interpret, for the first time, Article 15(1) and (3) of Directive 2004/38 concerning procedural safeguards.

3. Article 3 of Directive 2004/38, which is entitled ‘Beneficiaries’, provides in paragraph 1:

‘This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.’

4. Under Article 6 of that directive, which is entitled ‘Right of residence for up to three months’:

‘1. Union citizens shall have the right of residence on the territory of another Member State for a period of up to three months without any conditions or any formalities other than the requirement to hold a valid identity card or passport.

2. The provisions of paragraph 1 shall also apply to family members in possession of a valid passport who are not nationals of a Member State, accompanying or joining the Union citizen.’

5. Article 14 of that directive, which is entitled ‘Retention of the right of residence’, states in paragraphs 1, 2 and 4:

‘1. Union citizens and their family members shall have the right of residence provided for in Article 6, as long as they do not become an unreasonable burden on the social assistance system of the host Member State.

2. Union citizens and their family members shall have the right of residence provided for in Articles 7, 12 and 13 as long as they meet the conditions set out therein.

4. By way of derogation from paragraphs 1 and 2 and without prejudice to the provisions of Chapter VI, an expulsion measure may in no case be adopted against Union citizens or their family members if:

b) the Union citizens entered the territory of the host Member State in order to seek employment. In this case, the Union citizens and their family members may not be expelled for as long as the Union citizens can provide evidence that they are continuing to seek employment and that they have a genuine chance of being engaged.’

6. Article 15 of the same directive, which is entitled ‘Procedural safeguards’, provides in paragraphs 1 and 3:

‘1. The procedures provided for by Articles 30 and 31 shall apply by analogy to all decisions restricting free movement of Union citizens and their family members on grounds other than public policy, public security or public health.

3. The host Member State may not impose a ban on entry in the context of an expulsion decision to which paragraph 1 applies.’

7. Under Article 27 of Directive 2004/38, which is entitled ‘General principles’:

‘1. Subject to the provisions of this Chapter, Member States may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. These grounds shall not be invoked to serve economic ends.

2. Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures.

The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted.

8. Under Article 30 of that directive, which is entitled ‘Notification of decisions’:

‘1. The persons concerned shall be notified in writing of any decision taken under Article 27(1), in such a way that they are able to comprehend its content and the implications for them.

2. The persons concerned shall be informed, precisely and in full, of the public policy, public security or public health grounds on which the decision taken in their case is based, unless this is contrary to the interests of State security.

3. The notification shall specify the court or administrative authority with which the person concerned may lodge an appeal, the time limit for the appeal and, where applicable, the time allowed for the person to leave the territory of the Member State. Save in duly substantiated cases of urgency, the time allowed to leave the territory shall be not less than one month from the date of notification.’

9. Article 31 of that directive, which is entitled ‘Procedural guarantees’, provides in paragraphs 1 and 3:

‘1. The persons concerned shall have access to judicial and, where appropriate, administrative redress procedures in the host Member State to appeal against or seek review of any decision taken against them on the grounds of public policy, public security or public health.

3. The redress procedures shall allow for an examination of the legality of the decision, as well as of the facts and circumstances on which the proposed measure is based. They shall ensure that the decision is not disproportionate, particularly in view of the requirements laid down in Article 28.’

10. The Irish legislation intended to transpose Directive 2004/38 is currently contained in the European Communities (Free Movement of Persons) Regulations 2015 (‘the 2015 Regulations’).

11. The 2015 Regulations replaced the European Communities (Free Movement of Persons) (No. 2) Regulations 2006 (‘the 2006 Regulations’) and entered into force on 1 February 2016.

12. Section 3 of the Immigration Act 1999 governs the power of the Minister for Justice and Equality (‘the Minister’) to make ‘deportation orders’.

13. Under Section 3(1) of the Immigration Act 1999, the Minister may make a deportation order to ‘require any non-national specified in the order to leave the State within such period as may be specified in the order and to remain thereafter out of the State’.

14. Pursuant to Section 3(2)(h) and (i) of that act, a deportation order may be made in respect of persons who, respectively, ‘in the opinion of the Minister, ha[ve] contravened a restriction or condition imposed on him or her in respect of landing in or entering into or leave to stay in the State’ or ‘whose deportation would, in the opinion of the Minister, be conducive to the common good’.

15. Under Section 3(3)(a) of the Act, where the Minister proposes to make a deportation order, he must notify the person concerned in writing of the proposal and the reasons for it.

16. Section 3(4) of the Immigration Act 1999 provides that the notification of that proposal must include, amongst other things:

– a statement that the person may send representations within 15 working days;

– a statement that the person may leave the State voluntarily before the Minister decides the matter and that the person must inform the Minister of his arrangements for leaving;

– a statement that the person may consent to the making of a deportation order within 15 working days, following which the Minister must arrange for the removal of the person from the State as soon as practicable.

17. Under Section 3(3)(b)(i) of that act, where a person has made representations, before deciding the matter the Minister must take them into consideration.

18. Pursuant to Section 3(6) of the Act, in determining whether to make a deportation order, the Minister must have regard to a series of factors, such as the duration of the person’s residence in and his connection with the State, his employment (including self-employment) record and prospects, his character and conduct both within and, where relevant and ascertainable, outside the State, humanitarian considerations, the common good, as well as considerations of national security and public policy.

19. In deciding whether to make a deportation order, the Minister must also consider any risk of refoulement which may arise, as well as rights, such as personal rights, as may potentially arise under the Constitution of Ireland and/or the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950.

20. Once made, a deportation order remains in force indefinitely. However, the person concerned may apply for amendment or revocation of such an order pursuant to Section 3(11) of the Immigration Act 1999. In assessing an application for revocation of a deportation order, the Minister will consider whether the applicant has identified a change of circumstances since the making of that order which would warrant its revocation. Such circumstances can include, inter alia, the fact that the person is a family member of a Union citizen who is exercising in Ireland free movement rights afforded to him by EU law.

III. Facts at the origin of the dispute in the main proceedings, questions referred for a preliminary ruling and procedure before the Court

21. Ms Nalini Chenchooliah, a Mauritian national, arrived in Ireland in around February 2005, holding a student visa, and resided there until 7 February 2012 on the basis of successive permissions to remain. On 13 September 2011, she married a Portuguese national. On 2 February 2012, she applied for a residence card as the spouse of a Union citizen. Further to that application, the Minister sought, on numerous occasions, additional information from Ms Chenchooliah, some of which she provided by letter of 25 May 2012. By letter of 27 August 2012, Ms Chenchooliah sought additional time to submit a contract of employment, stating that her spouse had just started a job.

22. By decision of 11 September 2012, the Minister refused Ms Chenchooliah’s application for a residence card on the following grounds:

‘You have failed to show that the EU citizen is involved in economic activity in the State and this does not satisfy the Minister that the EU citizen is exercising [his] rights through employment, self-employment, the pursuit of a course of study, involuntary unemployment or the possession of sufficient resources in accordance with the requirements of Regulation 6(2)(a) of the [2006] Regulations. Therefore you are not entitled to reside in [Ireland] in accordance with Regulation 6(2)(b) of the Regulations.’

23. By letter of 15 October 2012, Ms Chenchooliah provided evidence that her spouse had been employed in a restaurant for 2 weeks and sought an extension of the time limit set to submit an application for review of the decision of 11 September 2012. By letter of 31 October 2012, the Minister agreed to extend that time limit. As part of the review, the Minister requested further information and stated that, if that information were not produced within 10 working days, the file would be referred to the Removals Unit. Since Ms Chenchooliah did not provide any new information for almost 2 years, the decision of 11 September 2012 became final.

24. By letter of 17 July 2014, sent directly to the Minister, Ms Chenchooliah stated that, following a criminal conviction, her spouse had been in prison in Portugal since 16 June 2014, and sought permission to remain in Ireland on the basis of her personal circumstances. That letter was received and acknowledged by the Minister’s private secretary on 18 July 2014. However, the letter does not appear to have been received by the competent section of the unit within the Minister’s department until 15 September 2014.

25. In the meantime, by letter of 3 September 2014, the Minister informed Ms Chenchooliah that a removal order against her was being considered on the basis that her spouse, a Union citizen, had resided in Ireland for longer than 3 months without complying with the requirements of Regulation 6(2) of the 2006 Regulations, the provision intended to transpose into Irish law Article 7(2) of Directive 2004/38, and that she was therefore no longer entitled to remain in Ireland.

26. By letter of 26 November 2015, lawyers representing Ms Chenchooliah asked the Minister, pursuant to the discretionary power afforded under Irish law, to grant Ms Chenchooliah leave to remain on the basis, inter alia, of Ms Chenchooliah’s long period of residence in Ireland and her employment history and prospects.

27. By letter of 15 November 2016, the Minister informed Ms Chenchooliah that he had decided not to proceed with the removal order and instead to commence a deportation order process in accordance with Section 3 of the Immigration Act 1999. A proposal to make a deportation order was included with that letter and Ms Chenchooliah was invited to make submissions on the proposal. That proposal was based on Ms Chenchooliah’s unlawful residence in Ireland since 7 February 2012 (3) and on the Minister’s opinion that her deportation would be conducive to the common good. An earlier decision, dated 21 October 2016 and included with that letter, confirmed that, on the basis of the 2006 Regulations and in accordance with the transitional provisions in the 2015 Regulations, the Minister had decided not to make a removal and exclusion order in respect of Ms Chenchooliah.

28. On 12 December 2016, the referring court granted Ms Chenchooliah leave to apply for judicial review of the decision of 21 October 2016 and to seek injunctive relief restraining the Minister from reaching a decision to deport her. That court also adopted interim measures intended to restrain pursuit of the process of deporting Ms Chenchooliah prior to the determination of her judicial review application.

29. It is apparent from the order for reference that the grounds upon which she was granted leave to make an application for judicial review to the referring court relate to the fact that Ms Chenchooliah, as the spouse of a Union citizen whose application for a residence card for a family member of a Union citizen was processed by the Minister, is a person to whom Directive 2004/38 and the 2006 Regulations, as amended by the 2015 Regulations, applied and continue to apply.

30. The referring court considers that, to date, the Court has not yet ruled on the question of whether a third-country national, the spouse of a Union citizen, continues to fall within the scope of Directive 2004/38 as a ‘beneficiary’ within the meaning of Article 3(1) of that directive, and whether, consequently, in a situation such as that in the main proceedings, in which the Union citizen has returned to the Member State of which he is a national in order to serve a prison sentence there and is therefore no longer exercising in the host Member State his right of free movement afforded by EU law, the expulsion of such a national from the host Member State in which that national resides is governed, inter alia, by Articles 27, 28 and 31 of Directive 2004/38.

31. The referring court makes reference in this regard to its judgment of 29 April 2014, Igunma -v- Governor of Wheatfield Prison and Others ([2014] IEHC 218), in which it found that that question had to be answered in the affirmative for the fundamental reason that, in a situation in which a third-country national lawfully marries a Union citizen at a time when that citizen is exercising his right, derived from EU law, to move and/or reside in the host Member State, such a national continues to fall within the scope of Directive 2004/38 as a ‘beneficiary’ within the meaning of Article 3(1) of that directive even if, at a later stage, the national is refused a right of residence under Article 7 of the Directive because the Union citizen was not exercising, or no longer exercising, his right of free movement. Since, in such a situation, Directive 2004/38 continues to apply, the national could be removed only in accordance with the provisions of Chapter VI of that directive. The referring court states that any lessons which may be drawn from that judgment and applied to the present case were debated before it.

32. The Minister criticised the substance of that judgment, arguing, inter alia, that it fails to have regard to an essential element of the case, namely that a family member of a Union citizen does not fall within the scope of Directive 2004/38 if that citizen is not actually exercising his right of free movement. In such a case, a decision to remove that family member would be governed not by the provisions of Chapter VI of that directive but by domestic immigration law. Furthermore, an interpretation to the contrary would require the demonstration of a danger for public policy or public security, which would make it very difficult, if not practically impossible, to remove third-country nationals who are spouses of Union citizens who enjoyed, at a certain time, only a temporary right of residence on account of the employment of their spouses in the host Member State, regardless of the current employment of those Union citizens or the place where they now reside, which might even be outside the European Union.

33. Ms Chenchooliah has, however, submitted that the judgment at issue supports her position that, as a person who at one time, on account of her marriage, had at the very least a temporary three-month right of residence under Article 6 of Directive 2004/38, she continues thereafter to fall within the scope of that directive and can therefore be expelled from the territory of the host Member State only in compliance with the rules and safeguards provided for in that directive.

34. It is in those circumstances that the High Court (Ireland) has, by judgment of 16 January 2018, received at the Registry of the Court on 12 February 2018, decided to stay the proceedings and refer the following questions to the Court:

‘1) Where the spouse of an EU citizen who has exercised free movement rights under Article 6 of Directive [2004/38] has been refused a right of residence under Article 7 on the basis that the EU citizen in question was not, or was no longer, exercising EU Treaty rights in the host Member State concerned, and where it is proposed that the spouse should be expelled from that Member State, must that expulsion be pursuant to and in compliance with the provisions of the Directive, or does it fall within the competence of the national law of the Member State?

2) If the answer to the above question is that the expulsion must be made pursuant to the provisions of the Directive, must the expulsion be made pursuant to and in compliance with the requirements of Chapter VI of the Directive, and particularly Articles 27 and 28 thereof, or may the Member State, in such circumstances, rely on other provisions of the Directive, in particular Articles 14 and 15 thereof?’

35. Written observations have been submitted by the parties to the main proceedings, the Danish, Netherlands and Austrian Governments and by the European Commission.

36. At the hearing on 15 January 2019, oral argument was presented on behalf of the applicant in the main proceedings, the Danish and Netherlands Governments and the Commission.

A. Outline of the issue raised by the questions referred for a preliminary ruling

37. Before considering the questions referred for a preliminary ruling from the viewpoint of EU law, it is necessary to provide an outline of the issue raised by the present case.

38. First of all, it is important to observe that, in the situation at issue in the main proceedings, Ms Chenchooliah, a Mauritian national, was permitted by the competent authorities to reside in Ireland as a student over the period from 2005 to 2012. After residing lawfully in Irish territory over that period of nearly 7 years, Ms Chenchooliah married a Portuguese national and applied for a residence card as the spouse of a Union citizen.

39. In that regard, it is clear from the information provided in the order for reference that Ms Chenchooliah’s spouse, a Union citizen, exercised his right of free movement by moving to and residing in a Member State other than the Member State of which he was a national when he left Portugal to go to Ireland, where he worked for at least 15 days. However, he returned to Portugal where, since 16 June 2014, he has been serving a prison sentence, whilst Ms Chenchooliah remained in Ireland.

40. Next, it should be noted that, as the referring court states, Ms Chenchooliah, on account of her marriage to that Union citizen during the period in which he was exercising his freedom of movement in Ireland, was, at the very least in that period, a ‘beneficiary’ within the meaning of Article 3(1) of Directive 2004/38. Her application to be granted a derived right of residence on the basis of the right of residence of her Union citizen spouse under Article 7(2) of Directive 2004/38 was, however, refused by the Minister’s decision of 11 September 2002, which has become final, because Ms Chenchooliah did not enjoy the right of residence in Ireland under Regulation 6(2)(a) of the 2006 Regulations, the provision intended to transpose Article 7(2) of Directive 2004/38 into Irish law. (4)

41. Lastly, as is apparent from her written observations and as was confirmed at the hearing, Ms Chenchooliah does not contest that decision by the Minister and, therefore, does not claim a derived right of residence on the basis of the right of residence of her spouse, a Union citizen, under Directive 2004/38. However, she does argue that, since she has resided in Ireland in accordance with the provisions of Directive 2004/38, she may only be the subject of an expulsion decision adopted in compliance with the applicable provisions intended to transpose that directive and, in particular, Articles 27 and 28 thereof, and not a deportation order made pursuant to Section 3 of the Immigration Act 1999, which is automatically accompanied by an indefinite ban on entry to Irish territory.

42. By its two questions referred for a preliminary ruling, which should be examined jointly, the referring court wishes to ascertain, in essence, whether Directive 2004/38, and in particular the provisions of Chapter VI or of Article 15 of that directive, must be interpreted as applying to a decision to expel a third-country national taken on the ground that that national no longer has a right of residence under that directive in a situation in which the national married a Union citizen at a time at which that citizen was exercising his freedom of movement by moving to and residing in a Member State other than the Member State of which he is a national pursuant to Article 6(1) of the Directive, that citizen having subsequently returned to the Member State of which he is a national.

43. It should be observed from the outset that the views of the applicant, the Commission, the Minister and the governments which have taken part in this case differ on this point. Whilst Ms Chenchooliah and the Commission claim that the situation at issue in the main proceedings, namely the expulsion of a family member of a Union citizen by a Member State on the ground that that citizen has ceased exercising his rights of free movement in that Member State, falls within the scope of Directive 2004/38, (5) the Minister, supported by Ireland, and the Danish, Netherlands and Austrian Governments take an opposing view. As for the referring court, as is clear from point 31 of this Opinion, that court refers to the judgment of the High Court of 29 April 2014, Igunma -v- Governor of Wheatfield Prison and others ([2014] IEHC 218), in which it found that Directive 2004/38 did apply in a situation similar to that at issue in the main proceedings. (6)

44. Accordingly, it appears to me to be necessary, in order to answer the questions put by the referring court, to determine first whether and to what extent Directive 2004/38 is applicable in the present case. With that objective in mind, I will examine the relevant case-law of the Court, which, in my view, offers some guidance capable of providing useful clarification for the referring court.

1. Applicability of Directive 2004/38 to Ms Chenchooliah’s situation and that of her Union citizen spouse

45. On the day after Union citizenship was established and 3 years after the delivery of the judgment in Grzelczyk, (7) in which the Court clarified, for the first time, that Union citizenship is destined to be the fundamental status of nationals of the Member States, (8) Directive 2004/38 was adopted in order to respond to the need to bring the rules governing free movement and residence in force since the early 2000s into line with that new status. (9)

46. It follows from recitals 1 to 4 and 11 of Directive 2004/38 that that directive aims, primarily, to ‘facilitate the exercise of the primary and individual rights to move and reside freely within the territory of the Member States that is conferred directly on Union citizens by Article 21(1) TFEU and to strengthen that right’. (10) In addition, the Court has clarified that the subject of that directive concerns, as is apparent from Article 1(a) thereof, the conditions governing the exercise of the right of Union citizens and their family members to move and reside freely within the territory of the Member States. (11)

(b) Is the concept of a ‘beneficiary’ within the meaning of Article 3(1) of Directive 2004/38 static or dynamic?

47. Article 3(1) of Directive 2004/38, which defines the scope ratione personae of that directive, provides that the Directive is to apply to all Union citizens who ‘move to or reside’ in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who ‘accompany or join them’. (12)

48. It follows from that provision, as interpreted by the Court, that only a beneficiary within the meaning of Article 3 of Directive 2004/38 can derive rights of free movement and residence under that directive. Such a beneficiary may be a Union citizen (who moves to or resides in a Member State other than that of which he is a national) or a member of his family (who accompanies or joins him), as defined in Article 2(2) of Directive 2004/38. (13) In that regard, it is apparent from settled case-law of the Court that Directive 2004/38 does not confer any autonomous right on family members of a Union citizen who are third-country nationals. Thus, any rights that may be conferred on those nationals by that directive are derived from the rights which the Union citizen concerned enjoys as a result of having exercised his freedom of movement. (14)

49. In the present case, it is clear that Ms Chenchooliah’s spouse, who exercised his freedom of movement by leaving the Member State of which he is a national, namely Portugal, to move to Ireland in order to reside there, fell within the scope of Article 3(1) of Directive 2004/38. Accordingly, as the referring court has stated, Ms Chenchooliah was also, at least during the period in which her Portuguese spouse was exercising his freedom of movement in Ireland, a ‘beneficiary’ within the meaning of Article 3(1) of that directive. (15) However, in view of the fact that Ms Chenchooliah’s spouse has returned to Portugal and that Directive 2004/38 does not cover the situation in which a Union citizen returns to the Member State of which he is a national, (16) the view must be taken that that citizen ceases to fall within the definition of a ‘beneficiary’ within the meaning of Article 3 of Directive 2004/38.

50. In that context, the question arises as to whether Ms Chenchooliah, the spouse of a Union citizen who has ceased exercising his freedom of movement, can lose the status of ‘beneficiary’ within the meaning of Article 3(1) of Directive 2004/38 since, in principle, in view of her spouse’s return to the Member State of which he is a national, she no longer satisfied the condition laid down in that provision, namely that of accompanying or joining the Union citizen. (17)

52. In this regard, the judgments in Metock and Others (18) and Lounes (19), from which it is clear that the concept of a ‘beneficiary’ within the meaning of Article 3(1) of Directive 2004/38 is dynamic or evolves over time, are, in my opinion, of particular importance.

53. In the judgment in Metock and Others, (20) the Court answered two questions referred for a preliminary ruling by the High Court in the context of proceedings between five Union citizens and their third-country national spouses, on the one hand, and the Minister, on the other. The Minister had refused their applications for a residence permit as the spouses of a Union citizen working and/or residing in Ireland on the ground that they did not satisfy the condition of prior lawful residence in another Member State, as required by the Irish Regulations at the time.

54. With regard, in the first place, to the requirement relating to prior lawful residence in another Member State, the Court stated that it is not all third-country nationals who derive rights of entry into and residence in a Member State from Directive 2004/38, but only those who are family members, within the meaning of point 2 of Article 2 of that directive, of a Union citizen who has exercised his right of freedom of movement by becoming established in a Member State other than the Member State of which he is a national. (21) It held that Directive 2004/38 precludes legislation of a Member State which requires a third-country national who is the spouse of a Union citizen residing in that Member State but not possessing its nationality to have previously been lawfully resident in another Member State before arriving in the host Member State, in order to benefit from the provisions of that directive. (22)

55. With regard, in the second place, to Article 3(1) of Directive 2004/38, the Court held that that provision must be interpreted as meaning that a third-country national who is the spouse of a Union citizen residing in a Member State whose nationality he does not possess and who accompanies or joins that Union citizen benefits from the provisions of that directive, irrespective of when and where their marriage took place and of how the third-country national entered the host Member State. (23)

56. The case which gave rise to the judgment in Lounes (24) concerned a Spanish national, Ms Ormazabal, who, after having resided in the United Kingdom since 1996, had become a naturalised British citizen in the course of 2009, while also retaining her Spanish nationality. In 2014, Ms Ormazabal had married an Algerian national, Mr Toufik Lounes. The latter had applied for a residence card as the spouse of a Union citizen; that application was refused by the Secretary of State for the Home Department because Mr Lounes had overstayed in the United Kingdom in breach of immigration controls.

57. Although the Court found that Ms Ormazabal was a Spanish national and had exercised her freedom of movement by moving to and residing in a Member State other than that of which she was a national, that is to say when she had left Spain to go to the United Kingdom in the course of 1996, the circumstances of the case in question led the Court to hold that Directive 2004/38 did not apply in that case. (25) Following in this regard the Opinion of Advocate General Bot, (26) the Court found that Ms Ormazabal’s acquisition of British citizenship had given rise to a change in the legal rules applicable to her, both in national law and under Directive 2004/38. (27) Thus, the Court held, first, that Ms Ormazabal ceased to fall within the definition of a ‘beneficiary’ within the meaning of Article 3(1) of Directive 2004/38 and, secondly, that that directive no longer governed her residence in the United Kingdom, as that residence was inherently unconditional. Accordingly, the Court found that Mr Lounes did not benefit from a derived right of residence in the Member State in question on the basis of the provisions of Directive 2004/38. (28)

58. The Court’s considerations were therefore focused on Union citizenship. (29) In that regard, the Court recalled that the rights conferred on a Union citizen by Article 21(1) TFEU, including the derived rights enjoyed by his family members, are intended, amongst other things, to promote the general integration of the Union citizen concerned in the society of the host Member State. (30) The Court went on to state that, if those rights are to be effective, citizens in a situation such as Ms Ormazabal’s must be able to continue to enjoy, in the host Member State, the rights arising under that provision, after they have acquired the nationality of that Member State in addition to their nationality of origin and, in particular, must be able to build a family life with their third-country national spouse, by means of the grant of a derived right of residence to that spouse. (31) More specifically, the Court held that Mr Lounes was eligible for such a derived right of residence under Article 21(1) TFEU, on conditions which were not to be stricter than those provided for by Directive 2004/38 for the grant of that right to a third-country national who is a family member of a Union citizen who has exercised his right of freedom of movement by settling in a Member State other than the Member State of which he is a national. (32)

(3) Evolving nature of the concept of a ‘beneficiary’ within the meaning of Article 3(1) of Directive 2004/38: the lessons to be drawn from the judgments in Metock and Others and Lounes

59. I am well aware of the factual differences between the present case and those which gave rise to the judgments in Metock and Others (33) and Lounes. (34) However, as I have mentioned in point 52 of this Opinion, those two cases appear to me to be relevant, inter alia, for the purposes of assessing the dynamic or evolving nature of the concept of a ‘beneficiary’ within the meaning of Article 3(1) of Directive 2004/38.

60. With regard to the judgment in Metock and Others, (35) it appears to me interesting to note from the outset that the four applicants in the main proceedings — third-country nationals — were relying, pursuant to Directive 2004/38, on the right to settle with their Union citizen spouses in the host Member State. (36) Those nationals had submitted their applications for residence permits in the host Member State at the time when their Union citizen spouses had already been residing there for some years. The Court thus gave that judgment in the context of the conferral of a derived right of residence in the host Member State where the Union citizen spouse had exercised his freedom of movement by settling in that Member State. (37) By way of reminder, the Court has stated that the requirement to accompany or join the Union citizen corresponds, in addition, to the purpose of the derived rights of entry and residence provided for by Directive 2004/38 for family members of Union citizens, as otherwise ‘the fact that it is impossible for the Union citizen to be accompanied or joined by his family in the host Member State would be such as to interfere with his freedom of movement by discouraging him from exercising his rights of entry into and residence in that Member State’. (38)

61. Can the view be taken, in the light of that guidance, that the status of ‘beneficiary’ within the meaning of Article 3(1) of Directive 2004/38, in so far as it was obtained by virtue of a third-country national’s marriage to a Union citizen exercising his freedom of movement in the host Member State where they reside together, is retained and can no longer be lost?

63. Since that judgment was given in the context of applications by third-country national spouses of Union citizens concerning the right of those nationals to settle with their Union citizen spouses in the host Member State, it cannot be inferred from the Court’s reasoning, contrary to Ms Chenchooliah’s claim, that the status of ‘beneficiary’ within the meaning of Article 3(1) of Directive 2004/38 is retained and can no longer be lost in a situation such as that at issue in the main proceedings.

64. Furthermore, the dynamic or evolving nature of the status of ‘beneficiary’ within the meaning of that provision has recently been brought to light by the Court in the judgment in Lounes. (40) The circumstances of the case which gave rise to that judgment, which are recalled in point 56 of this Opinion, led the Court to state that, since the acquisition by Ms Ormazabal, a Union citizen, of the nationality of the host Member State, she ceased to fall within the definition of a ‘beneficiary’ with the meaning of Article 3(1) of Directive 2004/38, despite the fact that she had exercised her right of free movement in the host Member State for almost 20 years and had even acquired a right of permanent residence within the meaning of that directive. (41)

65. If the lessons drawn from those two judgments are applied to the present case for the purposes of examining the evolving nature of the concept of a ‘beneficiary’ within the meaning of Article 3(1) of Directive 2004/38, this means that, initially, Ms Chenchooliah, as the spouse of a Portuguese citizen, obtained a derived right of residence not exceeding 3 months on the basis of Article 6(1) of that directive. She was, at that time, a ‘beneficiary’ within the meaning of Article 3(1) of Directive 2004/38 since she was residing with her Union citizen spouse in a Member State other than that of which he was a national. However, subsequently, Ms Chenchooliah lost her status as a ‘beneficiary’ within the meaning of that provision on account of her spouse’s return to Portugal, as he no longer satisfied the condition of residence in the host Member State and she herself no longer satisfied the condition of accompanying him to or joining him in that Member State. (42) It follows that, since her spouse’s return to Portugal and given that she remained in Ireland, where she no longer resides with him, Ms Chenchooliah ceases to fall within the definition of a ‘beneficiary’ within the meaning of Article 3(1) of Directive 2004/38.

66. That said, the question at heart of this case remains unanswered: despite the fact that Ms Chenchooliah is no longer a ‘beneficiary’ within the meaning of Article 3(1) of Directive 2004/38, can she be regarded as continuing to fall within the scope of that directive for the purposes of her expulsion from the host Member State?

67. As I intend to demonstrate in the considerations which follow, I am convinced that she can.

(c) The ‘lifecycle’ of the exercise of freedom of movement by a Union citizen and his family members under Directive 2004/38

68. It should be observed, first of all, that even though Ms Chenchooliah no longer has the status of ‘beneficiary’ within the meaning of Article 3(1) of Directive 2004/38 and, therefore, she has lost her right of residence in the host Member State, this in no way means that other provisions of that directive cannot apply. It is true that the applicability of Directive 2004/38 is determined by Article 3(1) in respect of the period during which a Union citizen and his family members are ‘beneficiaries’ within the meaning of that provision. Thus, during that period, they derive rights to move and reside freely from that directive. However, the consequences of losing the status of ‘beneficiary’ within the meaning of Article 3(1) of Directive 2004/38, in particular expulsion, are still attendant on the period during which that Union citizen and his family members resided lawfully in the host Member State as ‘beneficiaries’ within the meaning of Article 3(1) of that directive.

70. The structure of Directive 2004/38 shows that that directive establishes a system of differential application of its provisions. Simply reading the titles of the different chapters and provisions of Directive 2004/38 is enough to assess such a system. (43) The structure of that directive in fact refers, on the one hand, to the idea of the evolution of the circumstances of the Union citizen and his family members that it governs, as well as of the rights it affords to them and, on the other, to the idea of the gradual integration of the beneficiaries in the host Member State. Directive 2004/38 governs the entire lifecycle of the exercise of freedom of movement by a Union citizen and his family members from the time of their arrival in a Member State other than that of which that citizen is a national up until their departure from that Member State. (44)

71. Directive 2004/38 therefore establishes a system which covers various types of rights for various categories of citizens and which, therefore, entails a ‘differential application’ of its provisions. Such a differential application stems from the fact that, firstly, the circumstances of the entry, residence or departure of a Union citizen who has exercised his freedom of movement and of his family members who accompany or join him may be very different and, secondly, their circumstances may change during the period of residence in the host Member State. The differential application of Directive 2004/38 means quite simply that different categories of Union citizens and their family members (students, job-seekers, workers, permanent residents, etc.) may be subject to different types of rights according to the stage into which they fall (residence for up to 3 months, for more than 3 months or permanent) and the conditions of entry or residence which they satisfy throughout the exercise of their right to move and reside freely. Thus, the entire lifecycle of the exercise of their freedom of movement falls wholly within the scope of that directive. (45)

72. Furthermore, this general idea fits in perfectly with the idea that the system laid down in Directive 2004/38 governs the right of residence in the host Member State on a gradual basis. (46) Therein lies the concept of evolution. Thus, first, the right of residence for up to 3 months provided for in Article 6 of Directive 2004/38 is not subject to any condition or any formal requirement other than the requirement to be in possession of a valid identity card or passport. (47) Next, the right of residence for more than 3 months is subject to the conditions laid down in Article 7(1) of Directive 2004/38. (48) Finally, provision is made for a right of permanent residence (49) in Article 16 of that directive for Union citizens and their family members who have resided legally for a continuous period of 5 years in the host Member State. (50) A Union citizen and his family members may therefore pass through one or more stages when exercising their freedom of movement, provided that they satisfy the conditions — which vary according to the duration of the residence — laid down in Directive 2004/38, (51) which facilitates their ‘gradual integration’ in the society of the host Member State.

73. However, if, at any time, those persons no longer satisfy the conditions laid down in Directive 2004/38, meaning that they lose their status as ‘beneficiaries’ within the meaning of Article 3(1) of that directive, and therefore their rights of entry to and residence in the host Member State, this does not mean that other provisions of that directive do not apply to them. Such other provisions govern not only the conditions for retention of a right of residence and the conditions under which that right ceases to exist (Articles 12 to 14) but also the restrictions on the rights of entry and of residence and protection in the event of expulsion (Article 15).

74. In this regard, it seems to me to be useful to recall that Article 14(2) of Directive 2004/38 provides that ‘Union citizens and their family members shall have the right of residence provided for in Articles 7, 12 and 13 as long as they meet the conditions set out therein’. Articles 12 and 13 of that directive govern, respectively, the retention of the right of residence by family members in the event of the death or departure of the Union citizen and the retention of that right in the event of divorce, annulment of marriage or termination of registered partnership. Accordingly, while the situations set out in those two articles do not affect the right of residence of the family members of a Union citizen who are nationals of a Member State, (52) the same is not true of the family members of a Union citizen who are third-country nationals, who must satisfy certain conditions in order to retain their derived right of residence. If those conditions, which are set out in Article 12(2) and Article 13(2) of Directive 2004/38, are not met, those persons lose their rights of residence without however losing their protection against expulsion. They are protected by Article 15 (Chapter III) of that directive, which governs the restriction of the free movement of Union citizens and their family members on grounds other than public policy, public security or public health. Ms Chenchooliah’s situation falls within the scope of the latter provision.

75. In my view, an examination of Articles 12 and 13 of Directive 2004/38 reveals that, even if a third-country national loses the derived right of residence and, therefore, is no longer a ‘beneficiary’ within the meaning of Article 3(1) of that directive, the Directive does afford the protection in the event of expulsion provided for in Article 15 of that same directive.

76. Having said that, it seems to me to be important, at this stage of my analysis, to highlight the key difference between the present case and the case which gave rise to the judgment in Lounes. (53)

(2) Key difference between the present case and the case which gave rise to the judgment in Lounes

77. In Lounes, the change which occurred was a fundamental change in Ms Ormazabal’s status. It is apparent from that judgment that, by acquiring the nationality of the host Member State, Ms Ormazabal changed the legal rules applicable to her, both in national law and under Directive 2004/38. Thus, even though that directive had regulated the exercise of her freedom of movement in the host Member State for almost 20 years, the result of that fundamental change in the legal rules applicable to Ms Ormazabal was that her situation evolved not within the scope of Directive 2004/38 but, on the contrary, outside that scope, such that that directive had ceased to apply to Ms Ormazabal since her naturalisation. Consequently, Mr Lounes did not benefit from a derived right of residence in the host Member State on the basis of the provisions of Directive 2004/38.

78. By contrast, in the case in the main proceedings, the return of Ms Chenchooliah’s spouse to Portugal brought to an end the lifecycle of their (inherent and derived) rights of free movement and of residence, resulting in the loss of their status as ‘beneficiaries’ within the meaning of Article 3(1) of Directive 2004/38, without this however triggering the loss of the protection provided for in that directive in the event of expulsion from the host Member State.

79. In other words, unlike Ms Ormazabal’s situation, which, following the acquisition of British citizenship, fell outside the scope of Directive 2004/38 on account of the change in the legal rules applicable to her resulting from her change in status (whilst still, nevertheless, being covered by Article 21(1) TFEU), the situation of Ms Chenchooliah’s spouse, following his return to Portugal, is no longer governed by that directive, without this meaning that there was a change in the legal rules applicable to him. Her spouse may, in the future, exercise his right of free movement in Ireland within the framework of Directive 2004/38, whereas Ms Ormazabal, as a British citizen, enjoys an unconditional right of residence in the United Kingdom. Accordingly, that directive does not govern her right of residence in that Member State.

80. Therefore, unlike the situation of Mr Lounes who, following his spouse’s acquisition of British citizenship, could not benefit from a right of residence within the meaning of Directive 2004/38, the situation of Ms Chenchooliah, following her spouse’s return to Portugal, does fall inter alia within the scope of other provisions of that directive for the purposes of her expulsion. (54)

81. As is apparent from the considerations set out above in points 68 to 80 of this Opinion, it is clear that the expulsion of Ms Chenchooliah falls within the scope of Directive 2004/38, in particular Article 15 thereof.

83. In the first place, I note that, in the case which gave rise to the judgment in Metock and Others, (55) the Minister had already advocated a broad interpretation of the application of domestic immigration law to spouses who were family members of a Union citizen. That position was rejected by the Court in paragraphs 60 to 70 of its judgment. In that context, the Court recalled inter alia that the competence of the EU legislature to regulate the conditions of entry and residence of the family members of a Union citizen in the territory of the Member States where the impossibility of the Union citizen being accompanied or joined by his family in the host Member State would be such as to interfere with his freedom of movement by discouraging him from exercising his rights of entry and residence in that Member State. (56)

84. Moreover, granting Member States the ability to decide on the expulsion from the host State, pursuant to the procedural safeguards laid down in Directive 2004/38, or the deportation, in accordance with domestic immigration law, of third-country national family members of Union citizens would mean that the freedom of movement of Union citizens in a Member State of which they are not nationals would vary from one Member State to the next according to the provisions of national immigration law, in particular those provisions which authorise deportations accompanied by an indefinite ban on entry. Such an outcome would be inconsistent with the right of all Union citizens to move and reside freely within the territory of the Member States.

85. In the second place, it is important to note that, as the Commission has expressly pointed out, an interpretation under which a Union citizen and his family members would be subject to different expulsion procedures would undermine the objective of ensuring the protection of family life and of facilitating the exercise of freedom of movement. (57) Thus, if a third-country national spouse of a Union citizen who is no longer exercising his rights of free movement could be expelled on the basis of national immigration law providing for an indefinite ban on entry to Irish territory, as is the case here, this would amount in reality to preventing the Union citizen from returning to Ireland with his spouse in the future should he wish to exercise his freedom of movement in that Member State. (58)

86. In this regard, the Court has already recalled that recital 5 of Directive 2003/48 states that ‘the right of all Union citizens to move and reside freely within the territory of the Member States should, if it is to be exercised under objective conditions of freedom and dignity, be also granted to their family members, irrespective of their nationality’. (59) It is, in my view, reasonable to take the view that those ‘objective conditions of freedom and dignity’ must cover the entire lifecycle of the exercise of freedom of movement by Union citizens and their family members, from their arrival in the host Member State up until their departure from that Member State. Furthermore, recital 25 states inter alia that procedural safeguards should be specified in detail in order to ensure a high level of protection of the rights of Union citizens and their family members in the event of their being denied leave to enter or reside in another Member State.

87. In the third and final place, the view which I have put forward in points 68 to 80 of this Opinion, namely that Ms Chenchooliah continues to fall within the scope of Directive 2004/38, in particular Article 15 thereof, for the purposes of her expulsion, is consistent with the need not to interpret the provisions of Directive 2004/38 restrictively and not to deprive them of their effectiveness. (60)

88. Therefore, in the light of the foregoing considerations, I am of the view that, since the discontinuation or expiry of a right of residence forms part of the final stage of the exercise of freedom of movement, the expulsion from the territory of the host Member State of a third-country national spouse of a Union citizen continues to fall within the scope of Directive 2004/38, in particular Article 15 thereof, where that citizen has ceased to exercise his freedom of movement in the host Member State by returning to the Member State of which he is a national.

2. Restrictions and procedural safeguards applicable to the expulsion of Union citizens and their third-country national family members because their right of residence has expired

89. Directive 2004/38 lays down restrictions and procedural safeguards applicable to the expulsion of Union citizens and their family members. More specifically, that directive draws a distinction between two different sets of rules which are based on the grounds justifying the expulsion. Thus, an expulsion decision may be justified either on grounds of public policy, public security or public health (Chapter VI), or on other grounds (Article 15), inter alia the fact that a beneficiary of Directive 2004/38 ceases to fulfil the conditions of residence laid down in that directive.

90. Although I agree with the Minister that the grounds relied on for the purposes of justifying the expulsion of Ms Chenchooliah do not fall within the scope of the grounds of public policy, public security or public health laid down in Directive 2004/38, it is inconceivable to me, for the reasons which I will set out below, that Ms Chenchooliah’s situation is not covered by Article 15 of that directive.

91. The Minister and the governments which submitted observations argue that, in a situation such as Ms Chenchooliah’s, an expulsion decision is governed not by the provisions of Chapter VI of Directive 2004/38 but by national immigration law (deportation order). (61)

92. By contrast, Ms Chenchooliah claims that a decision to expel her must be adopted pursuant to and in compliance with the requirements of the provisions of Chapter VI of Directive 2004/38, in particular of Articles 27 and 28 of that directive.

93. Firstly, before examining the extent of protection against expulsion enjoyed by a third-country national spouse of a Union citizen, such as Ms Chenchooliah, it should be recalled that it is apparent from the title of Chapter VI of Directive 2004/38 that the provisions contained in that chapter, in particular Article 27, cover restrictions on the right of entry and the right of residence on grounds of public policy, public security or public health.

94. It is clear that the reasons relied on to justify the expulsion of Ms Chenchooliah are not based on grounds of public policy, public security or public health covered by Chapter VI of Directive 2004/38. (62) As the Minister stated in his written observations and confirmed at the hearing, her expulsion is based on the fact that, since his return to Portugal, her Union citizen spouse has ceased exercising his right of free movement in Ireland. The Minister also stated that a deportation order, such as the proposed order to deport Ms Chenchooliah, is a measure to control immigration adopted to serve economic ends.

95. Secondly, it appears to me to be useful to refer back to the judgment in Metock and Others, (63) specifically paragraphs 94 and 95 thereof. By way of reminder, the Court found, in paragraph 94 of that judgment, that ‘application of Directive 2004/38 solely to the family members of a Union citizen who “accompany” or “join” him is thus equivalent to limiting the rights of entry and residence of family members of a Union citizen to the Member State in which that citizen resides’. However, in paragraph 95 of that judgment, the Court clarified that, ‘from the time when the national of a non-member country who is a family member of a Union citizen derives rights of entry and residence in the host Member State from Directive 2004/38, that State may restrict that right only in compliance with Articles 27 and 35 of that directive’. (64) In my view, that clarification cannot be assessed in isolation from the factual context in the light of which that judgment was given, namely that the Union citizens concerned had settled in the host Member State and resided there with their third-country national spouses. Accordingly, such a clarification by the Court must be understood as meaning that if and in so far as the third-country national spouse of a Union citizen exercising his freedom of movement resides with that citizen in the host Member State and, subsequently, loses the right of entry and the derived right of residence of which he or she is a beneficiary under Directive 2004/38, those rights can be restricted only in compliance, inter alia, with Articles 27 and 35 of that directive.

96. When applied to the present case, this means that, since Ms Chenchooliah’s spouse has returned to Portugal and the couple no longer reside together in the host Member State, Ms Chenchooliah no longer benefits from the protection against expulsion provided for in Articles 27 and 28 of Directive 2004/38.

97. It follows that Ms Chenchooliah’s situation does not fall, in principle, within the scope of Chapter VI of Directive 2004/38. (65) However, as I have set out in points 72 to 74 of this Opinion, this does not mean that Ms Chenchooliah does not come under the scope of other provisions of that directive, in particular Article 15 thereof, which govern the procedural safeguards relating to the expulsion of Union citizens or of their family members who have in the past resided in the host Member State as ‘beneficiaries’ within the meaning of Article 3(1) of that same directive.

98. Under Article 15(1) of Directive 2004/38, ‘the procedures provided for by Articles 30 and 31 shall apply by analogy to all decisions restricting free movement of Union citizens and their family members on grounds other than public policy, public security or public health’. (66)

99. Firstly, it follows from a purely literal reading of Article 15(1) of Directive 2004/38 that the procedural safeguards to which that provision refers (Articles 30 and 31) apply ‘by analogy to all decisions restricting free movement of Union citizens and their family members’. This means that that provision applies to any expulsion decision restricting free movement not only of a Union citizen but also of his family members. It is likewise apparent from reading that provision that it does not cover decisions adopted on grounds of public policy, public security or public health but rather only those adopted ‘on other grounds’. Accordingly, the view should be taken that the ‘other grounds’ to which Article 15(1) of Directive 2004/38 refers concern, inter alia, the situation in which a derived right of residence in the host Member State is lost on account of the Union citizen’s return to the Member State of which he is a national, such as the situation at issue in the main proceedings.

100. Secondly, taking into account the provisions preceding and following Article 15 of Directive 2004/38, it should be observed that that article is contained in Chapter III of that directive, entitled ‘Right of residence’. The provisions of that chapter concern, inter alia, the right of residence for up to 3 months (Article 6), the right of residence for more than 3 months (Article 7) and, on the one hand, retention of the right of residence by family members in the event of the death or departure of the Union citizen (Article 12) or in the event of divorce, annulment of marriage or termination of registered partnership (Article 13), and, on the other, retention of the right of residence provided for in Articles 6, 7, 12 and 13, once provided that the beneficiaries of those rights meet the conditions set out in those articles (Article 14). In that context, as the Commission rightly pointed out, Article 15 of Directive 2004/38 covers those situations in which a Union citizen and his family members accompanying or joining him cease to satisfy the conditions of residence laid down in that directive (Articles 6, 7, 12, 13 or 14) and, as a result, lose their inherent or derived rights of residence. (67) In the present case, it is established that Ms Chenchooliah resided in Ireland as the spouse of a Union citizen who had exercised his freedom of movement in that Member State by virtue of the derived right of residence of less than 3 months provided for in Article 6(2) of Directive 2004/38, a right which she lost following her spouse’s return to Portugal.

101. Accordingly, when examined in context, Article 15 of Directive 2004/38 must be interpreted as covering a Union citizen and his third-country national family members in a situation such as that of Ms Chenchooliah. That interpretation is the only one capable of guaranteeing that the objectives pursued by that directive are achieved.

102. The conclusion set out above is confirmed by an analysis of the purpose of Directive 2004/38.

103. In this regard, it should be recalled, first of all, that it follows from a well-established interpretation by the Court that the EU legislature recognised the importance of ensuring the protection of the family life of nationals of the Member States in order to eliminate obstacles to the exercise of the fundamental freedoms guaranteed by the FEU Treaty. (68) As I have demonstrated in points 85 and 86 of this Opinion, not applying Article 15 of Directive 2004/38 to third-country national family members, which in my view would be inconceivable, would mean that a married couple could be expelled from the host Member State on the basis of different legal rules, which would undermine the objective of ensuring the protection of family life and of facilitating the exercise of freedom of movement. In the present case, if Ms Chenchooliah were expelled on the basis, inter alia, of Section 3(1) of the Immigration Act 1999, a ban on entry to Irish territory would be imposed on her. Even though, as the Minister stated in his written observations, Section 3(11) of that law provides that a person forming the subject of a deportation order may apply to the Minister for that order to be amended or revoked, the Minister confirmed at the hearing that that power was however discretionary.

104. Next, it should be recalled that, pursuant to Article 15(3) of Directive 2004/38, the host Member State may not impose a ban on entry in the context of an expulsion decision to which Article 15(1) applies. It is therefore clear that recourse by the host Member State to a deportation order on the basis of national immigration law accompanied by a ban on entry to its territory would constitute, in any event, a breach of the requirements contained in Article 15(3) of Directive 2004/38. In addition, such recourse would, in reality, amount to preventing the Union citizen from returning to Ireland with his third-country national spouse in the future should he wish to exercise his freedom of movement in that Member State.

105. Finally, the non-application of Article 15 of Directive 2004/38 to situations such as that at issue in the main proceedings would have the effect of rendering that provision meaningless in part by depriving it of its practical effect.

106. For all those reasons, I am of the view that Articles 15, 30 and 31 of Directive 2004/38 must be interpreted as applying to a decision to expel a third-country national spouse of a Union citizen, such as the applicant in the main proceedings.

107. In the light of all the foregoing considerations, I propose that the Court answer the questions referred for a preliminary ruling by the High Court (Ireland) as follows:

Articles 15, 30 and 31 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, as amended by Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011, must be interpreted as applying to a decision to expel a third-country national adopted on the ground that that national no longer has a right of residence under that directive, in a situation in which that national married a Union citizen at a time when that citizen was exercising his freedom of movement by moving to and residing in a Member State other than the Member State of which he is a national pursuant to Article 6(1) of that directive, that citizen having subsequently returned to the Member State of which he is a national.

2 Directive 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), as amended by Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 (OJ 2011 L 141, p. 1, and corrigenda OJ 2004 L 229, p. 35, and OJ 2005 L 197, p. 34) (‘Directive 2004/38’).

3 It is apparent from the order for reference that 7 November 2012 is the date on which the last permission to remain granted to the applicant as a student expired.

4 See point 23 of this Opinion. It should be noted that, in its written observations, the Commission states, as a preliminary point, that it appears to follow from the order for reference that the Irish authorities’ refusal to grant a residence card to Ms Chenchooliah was exclusively focused on whether her spouse, a Union citizen, personally had sufficient resources and could produce a contract of employment to that end. However, the Commission observes that it follows from well-established case-law of the Court that the requirement laid down in Article 7(1)(b) of Directive 2004/38 to ‘have’ sufficient resources must be interpreted as meaning ‘that it suffices that such resources are available to the Union citizen, and that that provision lays down no requirement whatsoever as to their origin, since they could be provided inter alia by the third-country national … As the Court has also previously held, an interpretation of the condition concerning the sufficiency of resources as meaning that the person concerned must have such resources himself, without being able to use for that purpose the resources of an accompanying family member, would add to that condition, as formulated in Directive 2004/38, a requirement as to the origin of the resources which, not being necessary for the attainment of the objective pursued, namely the protection of the public finances of the Member States, would constitute a disproportionate interference with the exercise of the fundamental right of freedom of movement and residence guaranteed by Article 21 TFEU’. See judgment of 16 July 2015, Singh and Others (C‑218/14, EU:C:2015:476, paragraphs 74 and 75 and the case-law cited). Although I agree with that analysis by the Commission, I must point out that not only do I not have sufficient information to examine that situation in the case at issue here but, more importantly, the Minister’s decision of 11 September 2012, which is not contested by Ms Chenchooliah, has become final. See point 22 of this Opinion.

5 According to the Commission, an expulsion measure should therefore be adopted in accordance with the national legislation transposing that directive.

6 The order for reference states that, in that case, the applicant, Mr Igunma, a third-country national, had been refused a residence permit in Ireland because his spouse, a Union citizen, had not been found to be exercising rights derived from EU law when the application for a residence permit was made. The case arose as a result of Mr Igunma’s arrest for the purposes of implementing a deportation order which had been made against him prior to his marriage to his spouse in Ireland. The central issue in that case was whether Mr Igunma could be regarded as a person falling within the scope of Directive 2004/38 and of the Irish Regulations transposing that directive. The referring court held that Directive 2004/38 and the aforementioned Regulations applied to Mr Ignuma, such that he could therefore be removed from the territory of the State only by way of a removal order made pursuant to the Irish Regulations. In paragraph 32 of that judgment, the referring court noted that there are differences between a deportation order and a removal order, one difference being that the duration of a deportation order is indefinite. According to the referring court, a removal order is spent once it is enforced, unless it is accompanied by an exclusion period of finite duration.

8 This clarification, which is well-established in the Court’s case-law, was recalled recently in the judgment of 10 December 2018, Wightman and Others (C‑621/18, EU:C:2018:999, paragraph 64 and the case-law cited).

10 Judgments of 25 July 2008, Metock and Others (C‑127/08, EU:C:2008:449, paragraphs 59 and 82); of 12 March 2014, O. and B. (C‑456/12, EU:C:2014:135, paragraph 35); and of 18 December 2014, McCarthy and Others (C‑202/13, EU:C:2014:2450, paragraph 31 and the case-law cited).

11 Judgments of 5 May 2011, McCarthy (C‑434/09, EU:C:2011:277, paragraph 33), and of 12 March 2014, O. and B. (C‑456/12, EU:C:2014:135, paragraph 41).

12 In this Opinion, I use the term ‘beneficiary’ solely within the meaning of Article 3(1) of Directive 2004/38. See footnote 54 of this Opinion.

13 See, to that effect, Opinion of Advocate General Sharpston in O. and Others (C‑456/12, EU:C:2013:837, point 68).

14 Judgment of 14 November 2017, Lounes (C‑165/16, EU:C:2017:862, paragraph 32 and the case-law cited).

16 The Court has, however, afforded a derived right of residence to the third-country national family members of a Union citizen who has returned to the Member State of which he is a national, see judgments of 7 July 1992, Singh (C‑370/90, EU:C:1992:296, paragraph 25) and of 11 December 2007, Eind (C‑291/05, EU:C:2007:771, paragraph 45). In those two judgments, the Court held inter alia that, where a Union citizen has resided with a member of his family, a third-country national, in a Member State other than that of which he is a national for a period greater than, respectively, 2½ years and 1½ years, and been gainfully employed in that Member State, that third-country national must, on the return of that Union citizen to the Member State of which he is a national, enjoy, under EU law, a derived right of residence in the latter State. The Court subsequently clarified, in its judgment of 12 March 2014, O. and B. (C‑456/12, EU:C:2014:135, paragraph 61), that Article 21(1) TFUE must be interpreted as meaning that Directive 2004/38 applies by analogy where a Union citizen has created or strengthened a family life with a third-country national during genuine residence, pursuant to and in conformity with the conditions set out in Article 7(1) and (2) and Article 16(1) and (2) of Directive 2004/38, in a Member State other than that of which he is a national and returns, with the family member in question, to the Member State of which he is a national. As the Court found, even though Directive 2004/38 does not cover such a return, it should be applied by analogy to the conditions for the residence of a Union citizen in a Member State other than that of which he is a national, given that in both cases it is the Union citizen who is the sponsor for the grant of a derived right of residence to a third-country national who is a member of his family. With regard to the return of a Union citizen and his same-sex spouse, see judgment of 5 June 2018, Coman and Others (C‑673/16, EU:C:2018:385). In relation to the return of a Union citizen and the partner with whom he has a duly-attested durable relationship, see judgment of 12 July 2018, Banger (C‑89/17, EU:C:2018:570).

17 In this regard, it should be observed that, since Ms Chenchooliah neither accompanied her spouse to Portugal nor joined him there, the case-law on the right of entry or the derived right of residence of a third-country national family member of a Union citizen who has returned to the Member State of which he is a national, does not apply in the circumstances at issue in the case in the main proceedings. See footnote 16 in relation to this case-law of the Court. With regard to the right of entry of a third-country national family member of a Union citizen who is in possession of a residence card issued by a Member State under Article 5 of Directive 2004/38, the Court has held that such a national ‘is not subject to the requirement to obtain a visa or an equivalent requirement in order to be able to enter the territory of that Union citizen’s Member State of origin’; judgment of 18 December 2014, McCarthy and Others (C‑202/13, EU:C:2014:2450, paragraph 42). See also my Opinion in McCarthy and Others (C‑202/13, EU:C:2014:345).

20 Judgment of 25 July 2008 (C‑127/08, EU:C:2008:449). See also the View of Advocate General Poiares Maduro in that case (C‑127/08, EU:C:2008:335).

21 Judgment of 25 July 2008, Metock and Others (C‑127/08, EU:C:2008:449, paragraph 73).

22 Judgment of 25 July 2008, Metock and Others (C‑127/08, EU:C:2008:449, paragraph 80). By way of reminder, in that judgment the Court reversed the judgment of 23 September 2003, Akrich (C‑109/01, EU:C:2003:491).

23 Judgment of 25 July 2008, Metock and Others (C‑127/08, EU:C:2008:449, paragraph 99).

25 The Court recalled, in this regard, that Directive 2004/38 is not intended to govern the residence of a Union citizen in the Member State of which he is a national and, consequently, nor is it intended to confer, in the territory of that same Member State, a derived right of residence on the family members of that citizen who are third-country nationals. Judgment of 14 November 2017, Lounes (C‑165/16, EU:C:2017:862, paragraph 37 and the case-law cited).

26 See Opinion of Advocate General Bot in Lounes (C‑165/16, EU:C:2017:407, points 48 and 63).

27 Judgment of 14 November 2017, Lounes (C‑165/16, EU:C:2017:862, paragraph 39).

28 Judgment of 14 November 2017, Lounes (C‑165/16, EU:C:2017:862, paragraphs 41 and 44).

29 Judgment of 14 November 2017, Lounes (C‑165/16, EU:C:2017:862, paragraph 48): ‘the purpose and justification of a derived right of residence are therefore based on the fact that a refusal to allow such a right would be such as to interfere, in particular, with [the] freedom [of movement] and with the exercise and the effectiveness of the rights which Article 21(1) TFEU affords the Union citizen concerned’.

30 Judgment of 14 November 2017, Lounes (C‑165/16, EU:C:2017:862, paragraph 56).

31 Judgment of 14 November 2017, Lounes (C‑165/16, EU:C:2017:862, paragraph 60). See also the Opinion of Advocate General Bot in Lounes (C‑165/16, EU:C:2017:407, point 86): ‘To deprive her henceforth of the rights to which she has till now been entitled in respect of the residence of her family members because, by being naturalised, she has sought to become more deeply integrated in the host Member State, would annihilate the effectiveness of the rights which she derives from Article 21(1) TFEU’.

32 Judgment of 14 November 2017, Lounes (C‑165/16, EU:C:2017:862, paragraph 62).

36 See judgment of 25 July 2008, Metock and Others (C‑127/08, EU:C:2008:449, paragraphs 18 to 37).

37 Judgment of 25 July 2008, Metock and Others (C‑127/08, EU:C:2008:449, paragraph 73).

38 Judgment of 25 July 2008, Metock and Others (C‑127/08, EU:C:2008:449, paragraph 63). See also judgments of 8 November 2012, Iida (C‑40/11, EU:C:2012:691, paragraphs 63 and 68); of 12 March 2014, O. and B. (C‑456/12, EU:C:2014:135, paragraph 45); of 13 September 2016, Rendón Marín (C‑165/14, EU:C:2016:675, paragraph 73); and of 14 November 2017, Lounes (C‑165/16, EU:C:2017:862, paragraph 48).

39 That being said, it is important, in my view, not to confuse, on the one hand, situations in which it is clear that the conditions laid down in Directive 2004/38 are not met, as is the case where the Union citizen returns to the Member State of which he is a national or settles permanently in another Member State whilst his third-country national spouse remains in the host Member State where they resided together, and, on the other, temporary situations, in which the Union citizen and his third-country national spouse should be regarded as continuing to be ‘beneficiaries’ within the meaning of Article 3(1) of Directive 2004/38. This is the case, inter alia, where a Union citizen travels to and resides temporarily in the Member State of which he is a national in order to receive duly-attested medical treatment or to provide temporary care for a family member with health problems, or where a Union citizen travels to and resides temporarily in another Member State for important reasons, such as pregnancy and childbirth, studies or professional training, or for professional reasons, such as secondment to another Member State or to a non-member country, and which would fall into the second category of situations. This means, in my opinion, that where the Union citizen is has to return to or reside temporarily in the Member State of which he is a national or travels to and resides temporarily in another Member State for duly justified reasons, his third-country national spouse who remains in the host Member State, inter alia, so as not to lose his or her job or to continue his or her studies or professional training in that Member State, must continue to be covered by the concept of a ‘beneficiary’ within the meaning of Article 3(1) of Directive 2004/38. With regard to retention of a residence card in the case of temporary absences, see Article 11(2) of that directive.

41 Ms Ormazabal’s gradual and exemplary integration in the society of the host Member State, to the point of taking up the nationality of that Member State, had the paradoxical result of her losing her rights under Directive 2004/38, although she had, at every stage, fulfilled the residence conditions required. With regard to that paradox, see Opinion of Advocate General Bot in Lounes (C‑165/16, EU:C:2017:407, points 86 to 89). However, the Court offset that restrictive interpretation of Directive 2004/38 by applying Article 21(1) TFEU, within the scope of which Ms Ormazabal continued to fall. In this regard, it appears to me to be important to note that, in that judgment, the Court took account, inter alia, of Ms Ormazabal’s Spanish nationality, finding that ‘a Member State cannot restrict the effects that follow from holding the nationality of another Member State, in particular the rights which are attendant thereon under EU law and which are triggered by a citizen exercising his freedom of movement’; judgment of 14 November 2017, Lounes (C‑165/16, EU:C:2017:862, paragraph 55). With regard to the reconsideration of the principle of the primacy of the nationality of the State of the court seised, see, inter alia, Pataut, É., ‘Les conflits de nationalités face au droit de l’Union’, Revue critique de droit international privé, April-June 2018, pp. 241-256.

42 Since Ms Chenchooliah’s spouse has returned to Portugal, where he is serving a long prison sentence, it is not possible to regard his return to Portugal as ‘temporary’ as defined in footnote 39 of this Opinion. See also footnotes 16 and 17of this Opinion.

43 See, in particular, Chapter II, entitled ‘Right of exit and entry’, and Chapter III, entitled ‘Right of residence’ (for up to 3 months, for more than 3 months, permanent), on the retention of the right of residence (even in the event of the departure of the Union citizen), restrictions on the right of entry and of residence (expulsion), of that directive.

44 I understand the lifecycle of Directive 2004/38 to be the period of time over which the successive stages of the Union citizens’ freedom of movement take place, including the period in which the right of free movement governed by that directive ceases to exist.

46 In this regard, the Court has observed on several occasions that, within the overall context of Directive 2004/38, the objective of facilitating and strengthening the exercise of the primary and individual rights to move and reside freely within the territory of the Member States that is conferred directly on Union citizens by the FEU Treaty forms part of a gradual system governing the right of residence in the host Member State. The Court has added that, by reproducing, in essence, the stages and conditions set out in the various instruments of EU law and case-law preceding that directive, that system culminates in the right of permanent residence. Judgments of 21 December 2011, Ziolkowski and Szeja (C‑424/10 and C‑425/10, EU:C:2011:866, paragraph 38); of 16 January 2014, Onuekwere (C‑378/12, EU:C:2014:13, paragraph 30); and of 17 April 2018, B and Vomero (C‑316/16 and C‑424/16, EU:C:2018:256, paragraph 51).

47 Under Article 14(1) of that directive, that right is retained as long as the Union citizens or their family members do not become an unreasonable burden on the social assistance system of the host Member State.

48 Under Article 14(2) of that directive, Union citizens and their family members are to have that right of residence if they satisfy the conditions set out inter alia in Article 7 of that directive, which are intended to prevent them from becoming an unreasonable burden on the social assistance system of the host Member State. See Opinion of Advocate General Wathelet in Gusa (C‑442/16, EU:C:2017:607, points 51 and 52): ‘that second objective [which is apparent from recital 10] … exists only by reason of the first: since the directive aims to facilitate the exercise of the right of residence, the Member States felt it necessary to ensure that the financial burden of that freedom be kept under control’.

49 More specifically, it is apparent from Article 16(1) of Directive 2004/38 that the right of permanent residence is not subject to the conditions laid down in Chapter III of that directive. Thus, the holder of a right of permanent residence could be a burden on the social assistance system of the host Member State and could not be expelled from the territory of that Member State. See Lenaerts, K., ‘European Union Citizenship, National Welfare Systems and Social Solidarity’, Jurisprudence, No 18, 2011, p. 409.

50 ‘The basic idea is that the rights enjoyed by the Union citizen and his family members increase the longer the period of residence in another Member State’, Barnard, C., The Substantive Law of the EU: The Four Freedoms, 5^th edition, Oxford University Press, Oxford, 2016, p. 438.

51 In order to extend his period of residence in the host Member State beyond 3 months, a Union citizen must be a ‘worker or self-employed person’ (Article 7(1)(a)), or have sufficient resources not to become a burden on the social assistance system of the host Member State during his period of residence and have comprehensive sickness insurance cover (Article 7(1)(b)), or be a student (Article 7(1)(c)) or a family member accompanying or joining a Union citizen who satisfies the conditions set out above (Article 7(1)(d)). If the citizen satisfies one of those conditions, the benefit of the right of residence for more than 3 months is likewise extended (subject to the restrictions laid down in paragraph 4 of that Article 7) to his family members who are not nationals of a Member State (paragraph 2 of that same article).

52 Without prejudice to the second subparagraph of Article 12(1) of Directive 2004/38, which provides that, ‘before acquiring the right of permanent residence, the persons concerned must meet the conditions laid down in points (a), (b), (c) or (d) of Article 7(1)’, and to the second subparagraph of Article 13(1) of Directive 2004/38, which provides that, ‘before acquiring the right of permanent residence, the persons concerned must meet the conditions laid down in points (a), (b), (c) or (d) of Article 7(1)’.

54 As the Commission stated at the hearing, a distinction must be drawn according to the objective behind the use of the concept of a ‘beneficiary’, namely, in particular, between the objective relating to the exercise of the right of free movement and/or the right of residence and that relating to the restriction of those rights and protection in the event of expulsion.

56 Judgment of 25 July 2008, Metock and Others (C‑127/08, EU:C:2008:449, paragraph 63). See also judgments of 8 November 2012, Iida (C‑40/11, EU:C:2012:691, paragraphs 63 and 68); of 12 March 2014, O. and B. (C‑456/12, EU:C:2014:135, paragraph 45); of 13 September 2016, Rendón Marín (C‑165/14, EU:C:2016:675, paragraph 73); and of 14 November 2017, Lounes (C‑165/16, EU:C:2017:862, paragraph 48).

57 According to the clarifications provided by the Commission at the hearing before the Court, in such circumstances the Union citizen would be the subject of a removal order under the Irish legislation transposing Directive 2004/38, whereas the third-country national spouse would be the subject of a deportation order accompanied by an indefinite ban on returning to Ireland on the basis of national immigration law, which is expressly prohibited by Article 15(3) of that directive.

58 Under Article 21(1) TFEU, ‘every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect’.

59 Judgments of 25 July 2008, Metock and Others (C‑127/08, EU:C:2008:449, paragraph 83), and of 18 December 2014, McCarthy and Others (C‑202/13, EU:C:2014:2450, paragraph 33).

60 Judgments of 11 December 2007, Eind (C‑291/05, EU:C:2007:771, paragraph 43); of 25 July 2008, Metock and Others (C‑127/08, EU:C:2008:449, paragraph 84); and of 18 December 2014, McCarthy and Others (C‑202/13, EU:C:2014:2450, paragraph 32).

61 See point 32 of this Opinion. It should be recalled, as is apparent from the legal context set out in the order for reference, that a deportation order made pursuant to Section 3 of the Immigration Act 1999 is automatically accompanied by an indefinite ban on entry to Irish territory.

62 As the Minister and Ireland stated before the referring court and in their written observations, it is clear that a decision to expel Ms Chenchooliah on the basis of Article 27 of Directive 2004/38 cannot, in fact, be adopted since, under that provision, it must be established that the individual concerned represents a danger for public policy or public security, which is quite clearly not the case here.

64 It should be observed that it is on this paragraph of the judgment in Metock and Others that the High Court relied to take the view, in paragraph 30 of its judgment of 29 April 2014, Igunma -v- Governor of Wheatfield Prison and others ([2014] IEHC 218), to which the referring court makes reference, that Mr Igunma fell within the scope of Article 3(1) of Directive 2004/38 because he married a Union citizen in the host Member State in which that citizen exercised her freedom of movement, and that he continued to be covered by that provision even though he had been lawfully refused a residence card.

65 Save in relation to Articles 30 and 31 of that directive, as I will explain below.

67 As for the relationship between Article 3(1) and Articles 12 to 15 of Directive 2004/38, Article 15 applies, as I have just made clear, to all cases in which a Union citizen or his family members do not satisfy the conditions of residence laid down in Articles 6, 7 and 12 to 14 of that directive. It is therefore important to point out that Article 7(2) of Directive 2004/38 provides that ‘the right of residence provided for in paragraph 1 shall extend to family members who are not nationals of a Member State, accompanying or joining the Union citizen in the host Member State, provided that such Union citizen satisfies the conditions referred to in paragraph 1(a), (b) or (c)’ (emphasis added). That reference ‘to family members who are not nationals of a Member State, accompanying or joining the Union citizen in the host Member State’ also appears in Article 3(1) of that directive. It is therefore clear that Article 15 of Directive 2004/38 likewise applies to the third-country national family members of a Union citizen.

68 Judgment of 25 July 2008, Metock and Others (C‑127/08, EU:C:2008:449, paragraph 56 and the case-law cited).

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Chenchooliah (Citizenship of the Union - Opinion) [2019] EUECJ C-94/18_O (21 May 2019) URL: http://www.bailii.org/eu/cases/EUECJ/2019/C9418_O.html Cite as: [2019] EUECJ C-94/18_O, EU:C:2019:433, ECLI:EU:C:2019:433

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