EU free movement denied

The Irish high court judgement of Raducan & Anor -v- MJELR & Ors   [2011] IEHC 224 illustrates EU free movement rights denied, and serious consequences following from that.

26. It is a matter of profound regret that a perfectly innocent [family member of an EU citizen] who had every right to enter [Ireland] was instead refused entry and found herself obliged to spend the equivalent of almost three full days in custody.

The case is about the Moldovan wife of a Romanian citizen who was denied entry to Ireland and was detained for three days.  She was not given entry on presenting her Residence Card as a family member of an EU citizen (Article 5(2) of the Directive 2004/38/EC), nor was she her entry facilitated when she presented a marriage certificate proving her relationship to her EU husband.

7. Ms. Raducan gave evidence with the benefit of an interpreter. She said that when she approached the immigration booth, she presented her Moldovan passport, her husband’s Romanian passport and the family residence card to Garda McCormack, who was the immigration officer on duty. Ms. Raducan maintained that Garda McCormack took the two passports and put the card to one side. According to her, Garda McCormack insisted that she needed a visa and stated that the family residence card was not valid in Ireland. Ms. Raducan insisted that at that point she then produced her marriage certificate from her purse in order to show that she was married, but that Garda McCormack was only interested in the production of a visa.

10. Under cross-examination Garda McCormack agreed that she had not asked Ms. Raducan whether she was married, but stressed that no marriage certificate or family residence card had been produced. She was not familiar with the family residence card and had never encountered such a card before it was produced in evidence. She had checked the status of the applicants on the Garda information system and she noted that Ms. Raducan had previously overstayed in Ireland once her visa had expired. While she agreed that interpreters were often used over the phone, she had not used this facility in the present case.

23. It is clear from the evidence of Sergeant Biggins – indeed, he swore an affidavit to this effect – that such visas cannot be obtained at Dublin Airport and that any third country spouse can only apply on line from abroad for such a visa. This is clearly is a manifest breach of Article 5(2), since it could hardly be said that the State has afforded “such persons every facility to obtain the necessary visas.” One need hardly add that the absence of such a facility means that the State is also plainly failing in its obligation to issue such visas “as soon as possible and on the basis of an accelerated procedure.” There was thus a clear breach of the Directive in that Ms. Raducan was not offered the possibility of securing a visa on her arrival at Dublin Airport.

24. Nor can it be said in the present case that the State has complied with its duty with regard to Article 5(4) which was, before turning the applicant back, to give her “every reasonable opportunity to obtain the necessary documents or have them brought to them within a reasonable period of time or to corroborate or prove by other means that they are covered by the right of free movement and residence.” In this context it was striking that the State had plainly not given its immigration officers appropriate training regarding the family residence card, since neither Garda McCormack nor Sergeant Biggins had ever encountered such a card prior to the present litigation and nor were they aware of same.

The judge invited Ms Raducan’s solicitor to request compensation.  The judge then awarded a rather token “€7,500 in damages for breaches of her constitutional rights“.

30. It is only appropriate that I should also record that Ms. Raducan informed the court through her counsel that she had been well treated while in prison. While her generosity of spirit and general lack of rancour with regard to her experience are most commendable, I cannot overlook the fact that what occurred represented a very serious breach of her constitutional right to liberty (Article 40.4.1) and, indeed, her constitutional right to a good name (Article 40.3.2). This, furthermore, was also a direct consequence of the State’s failure to comply with its obligations under Article 5(2) and Article 5(4) of the 2004 Directive.

The compensation seems to have been paid for her detention, namely 3 days at €2,500 per day.  There was apparently no separate fine or compensation for violation of her free movement rights.  Separately a UK solicitor has mentioned that UKBA regularly pays compensation for illegal detention, but is not aware of UKBA paying for other sorts of damages such as missed wages or opportunity cost of applicants incorrectly denied European free movement documentation.  Are there any example of compensation paid for free movement law violations other than illegal detention?

The ruling is a clear tutorial on the rights of EU citizens and their family members to enter a host member state.  But it is also a warning of how things can go wrong for even the best prepared travellers: in this case she had a Residence Card issued by another member state, and was carrying her marriage certificate, and yet still she was detained for 3 days!

Finally, it illustrates the low awareness of EU free movement by some border and immigration staff, approaching a decade after Directive 2004/38/EC was issued.