Dáil Éireann Debate, Wednesday - 8 December 2004
21 Mr. Allen asked the Minister for Justice, Equality and Law Reform the regulations in place that apply to citizens of each of the member states of the European Union who may wish to reside, study or seek employment here; and if he will make a statement on the matter. [30037/04]
View answerGiven the extent to which European Union law impinges on all aspects of public governance, not only those for which my Department has responsibility, it is assumed that the focus of the Deputy's question is the free movement rights enjoyed by EU citizens who wish to reside, study or seek employment in Ireland.
Since British citizens are exempt from immigration control in this jurisdiction, by virtue of an order made by Government, what follows is not relevant to their situation. The panoply of EU free movement rights are set out in a number of articles of the treaty itself together with two regulations and a series of nine directives. These rights have over the years delineated free movement rights by reference to purpose of visit — beginning originally with workers and extended subsequently to the self employed, persons who provide or receive services, self sufficient persons, students and retired persons. The general effect of these legislative instruments in the areas comprehended by the Deputy's question are as follows.
Article 18 of the EC Treaty lays down the right of every citizen of the Union to move freely within the territory of the member states, subject to the limitations and conditions laid down in the EC Treaty and by measures adopted to give it effect. Community legislation stipulates that member states must generally admit nationals of other member states and the members of their family into their territory against presentation of a valid identity card or passport.
The free movement of workers enshrined in article 39 of the EC Treaty entails the right for nationals of member states to take up residence within the territory of other member states and to reside there for the purposes of seeking employment. The period of residence for a person seeking employment may be limited. However, in the Antonissen case — C 292/89 — the European Court of Justice determined that it was unlawful for a member state to require an unemployed EU national to leave after six months where the person concerned provides evidence that he or she is continuing to seek employment and that he or she has genuine chances of being engaged.
The situation in regard to students is set out in Council Directive 93/96/EEC. In essence that confers the right of residence on students who are enrolled in a recognised educational establishment for the principal purpose of following a vocational training course where such students are covered by sickness insurance and have sufficient resources to avoid becoming a burden on the social security system. However, in another European Court of Justice case — C 184/89 — the court determined that a student did not automatically lose his or her rights of residence as a result of having recourse to the host member state's social security system.
The circumstances in which a person who is exercising EU Treaty rights of free movement may be removed from a member state are set out in Directive 64/221/EEC. The grounds may be summarised as grounds relating to public policy, public security and public health. That directive is intended to limit the discretionary power which national laws generally confer on the authority responsible for the expulsion of foreign nationals. In the Van Duyn case — C 41/74 — the European Court of Justice held that the directive confers rights on EU nationals which are directly enforceable by them in the national court and which the courts must protect. The directive also contains extensive procedural safeguards, regarding reasons for decisions, appeals and so forth. The public policy ground may not be used to serve economic ends.
Similarly, in the case of Bouchereau — C 30/77 — the European Court of Justice found that the public policy ground cannot be invoked solely on the basis of a previous criminal conviction. The objective is to ensure that since free movement is one of the fundamental rights guaranteed by Community law, its effects can only be abrogated in accordance with the principle of proportionality. Proportionality requires justified grounds for a measure, justified balance between the measure and the objective and justified balance of interests between the individual and the state concerned.
An EU national who is resident in another member state for more than three months is entitled to a residence permit. However, since the permit constitutes mere evidence of an entitlement to be here, failure to possess one cannot of itself constitute a ground for expulsion. These provisions are given effect in Irish law by the provisions of the European Communities (Aliens) Regulations 1977, SI No. 393/1977, and the European Communities (Right of Residence for Non Economically Active Persons) Regulations 1997, SI No. 57/1997.
On 29 April 2004, Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the member states was adopted. This directive codifies in a single instrument the complex legislative corpus and the case law on free movement and residence. Member states are required to bring into force by 30 April 2006 such laws, regulations and administrative provisions as are necessary to comply with the directive.
