The High Court quashed a decision refusing a Kenyan mother’s application for Stamp 4 residency under EU law, ruling that the Minister must consider the definite prospect of future income from an accepted job offer when assessing whether her German citizen daughter has sufficient resources to reside in Ireland.
Mr Justice Barr also declared that the mother was entitled to apply for Stamp 4 residency. The ruling does not grant her residency or decide that she meets the requirements. The judgment says the Minister must assess the application in light of the legal principles it sets out.
The case concerned a letter sent by the Minister on 6 February 2012. It said the mother did not qualify as a permitted or qualifying family member under the relevant Irish regulations, but that her application could be considered under the Court of Justice’s Chen ruling. It added that a successful Chen application would provide Stamp 3 residence only. The High Court found that the letter made a decision on Stamp 4 eligibility that could be challenged through judicial review.
The mother is the primary carer of her daughter, who was born in Ireland in 2010 and is a German national by descent. She argued that the child could reside in Ireland if she met EU rules requiring sufficient resources and comprehensive sickness insurance. The mother said she wanted to work and had completed a FETAC Level 5 course in nursing studies. She clarified that the qualification could help her obtain work as a healthcare assistant, rather than as a nurse.
The Minister argued that Chen gave a primary carer a right to reside, but not a right to work, and that resources had to exist when an application was made. The judgment considered the Chen and Alokpa rulings, as well as submissions about the EU citizenship case Zambrano. It concluded that EU law did not require resources to be in hand at the time of application and that an accepted job offer could provide a definite prospect of future resources.
The court also rejected the Minister’s procedural objections. It found that the mother was not eligible to use the review process under the regulations and could pursue judicial review. It held that inconsistencies in her affidavits about the timing of her relationship with the child’s father and her nursing qualification were not material enough to deny her relief.
The judgment records that the mother and daughter’s asylum claims had been refused, while their subsidiary protection applications were still awaiting determination according to evidence filed in 2013. Those matters were background to this case; the court’s order addressed the Stamp 4 decision.