Nalini Chenchooliah v Minister for Justice and Equality - Judgment of the Court (Grand Chamber), 10 September 2019 - Case C‑94/18 - Résumé
The restriction on the right of entry and the right of residence on grounds of public policy may be applied to a third-country national married to a Union citizen having exercised his right to freedom of movement who, after her spouse has returned to his Member State of origin, no longer has the right to reside in the Member State where she had lived with her spouse
In the judgment in Chenchooliah (C‑94/18), delivered on 10 September 2019, the Grand Chamber of the Court was required to interpret Article 15 of Directive 2004/38, which provides, inter alia, that certain procedures set out in Chapter VI of the directive, entitled ‘Restrictions on the right of entry and the right of residence on grounds of public policy, public security or public health’, are to 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. The Court found that that article is applicable to a decision to expel a third-country national on the ground that that person no longer has a right of residence under the directive in a situation where the third-country national concerned married a Union citizen at a time when that citizen was exercising his right to freedom of movement by moving to and residing with that third-country national in the host Member State and, subsequently, the Union citizen returned to the Member State of which he is a national. The Court added that that means that certain safeguards laid down in the directive in connection with decisions restricting the right to freedom of movement of a Union citizen or his family members on grounds of public policy, public security or public health are applicable when an expulsion decision, such as the decision at issue in the main proceedings, is adopted and it is not possible, under any circumstances, for such a decision to impose a ban on entry into the territory.
The judgment relates to a dispute between a Mauritian national, residing in Ireland, and the Minister for Justice and Equality concerning a decision to deport that third-country national, pursuant to Section 3 of the Irish Immigration Act 1999, following the return of her spouse, a Union citizen, to the Member State of which he is a national, that is, Portugal, where he is serving a prison sentence. The removal decision automatically imposed an indefinite ban on entry into the territory under national law.
First of all, the Court found that, in a situation in which a Union citizen has returned to the Member State of which he is a national and therefore no longer exercises in the host Member State his right to freedom of movement under EU law, a third-country national, the spouse of that Union citizen, no longer enjoys the status of ‘beneficiary’ within the meaning of the directive where she remains in the host Member State and no longer lives with her spouse.
Next, the Court ruled that, even though the effect of the loss of that status is that the person concerned no longer has the rights of movement and residence in the territory of the host Member State which that person had held for a certain period of time, as he or she no longer meets the requirements to which those rights are subject, that loss does not mean that Directive 2004/38 is no longer applicable where the host Member States takes a decision to expel that person on such a ground. Article 15 of Directive 2004/38, which is in Chapter III, entitled ‘Right of residence’, lays down the rules applicable when a temporary right of residence under the directive comes to an end, in particular where a Union citizen or one of his family members who, in the past, had a right of residence of up to 3 months, or longer than 3 months, no longer satisfies the requirements for the grant of the right of residence concerned and may therefore, in principle, be expelled by the host Member State.
Moreover, the Court observed that Article 15(1) of Directive 2004/38 refers only to the application by analogy of the certain provisions of Chapter VI of the directive, relating in particular to the notification of decisions and access to judicial redress procedures. On the other hand, other provisions of that chapter are not applicable when a decision is adopted under Article 15 of the directive. Those other provisions are applicable only if the person concerned currently derives from that directive a right of residence in the host Member State which is either temporary or permanent.
Lastly, the Court adds that, in accordance with Article 15(3) of Directive 2004/38, the expulsion decision that may be made in the case in the main proceedings cannot, under any circumstances, impose a ban on entry into the territory.