Judgement of the Supreme Administrative Court, No. 2 As 63/2006-63 of 17 October 2007

Right of citizens of the Union and their family members to move and to reside freely within the territory of the Members States - Restrictions on the right of residence on grounds of public policy

Policie Èeské republiky, Øeditelství služby cizinecké a pohranièní policie (Department of the Foreign and Border Police of Czech Republic, "defendant") delivered an administrative decision by which it dismissed an appeal against a decision of Policie Èeské republiky, Oddìlení cizinecké policie Brno-mìsto (Municipal Foreign Police in Brno) which consisted in a refusal of a residence card application of the complainant, a Vietnamese national. The refusal was justified as being a measure of public policy, since the complainant based the application on a marriage with a Czech citizen which the police considered being solely a marriage of convenience. Subsequently, Mìstský soud v Praze (City Court in Prague) dismissed the appeal of a complainant against the above-mentioned administrative decision of the defendant.

The complainant filed a cassation complaint against the decision of the City Court. She contented that the law allows her to conclude a marriage and then to apply for a residence card. Therefore, she proceeded in compliance with the legal order. She perceives the fact that her application was refused as a denial of her fundamental right to do what is not forbidden by law as stated in the Listina základních práv a svobod (Charter of Fundamental Rights and Freedoms). Moreover, she pointed out that Article 27(2) of Directive 2004/38/EC, on the right of citizens of the European Union and their family members to move and to reside freely within the territory of the Member States, presumes that easures taken on grounds of public policy and public security must be proportional and shall be based exclusively on the personal conduct of the individual concerned. As to her own situation, she did not consider the measure consisting in a refusal of a residence card application as a proportional one.

Due to a judicial inquiry, the Court found out that the complainant and her husband did not have the same place of residence and that the latter has been living with another woman and their three children since three years. Moreover, the husband stated that he married the complainant merely for a consideration of 8 000 CZK. Thus the Court had no doubts that the only purpose of the marriage for the complainant was to be granted the right of permanent residence. Furthermore, the Court defined public policy, among others, as a set of rules that ensure the functioning of the society in compliance with general principles of the Constitution. Therefore, according to the Court, even immoral acts which do not violate wording of provisions of the law but are jeopardizing the purpose of the law in question are contrary to the public policy.

As to the reference to Directive 2004/38/EC made by the complainant, the Court emphasized that, at the time of the proceedings before the defendant, the Directive had not yet been subject to implementation in the Czech Republic. Nevertheless, the Court confirmed that its reasoning would be in line with the content of the above-mentioned Directive. Concerning Article 27(2) of the Directive referred to by the complainant, the Court held that conclusion of a marriage is clearly a personal conduct. Moreover, by concluding a marriage of convenience and therefore circumventing the legal rules, the complainant disturbed the public order. Thus, the conditions being laid down by this article, so that the measures on grounds of public policy might be used, would be satisfied.

Therefore, the Court dismissed the cassation complaint.