The High Court refused the applicants leave to bring a judicial review challenge to the refusal of a residence card for a Nigerian man, finding their proposed case clearly unfounded.
The application concerned a decision by the Minister for Justice’s EU Treaty Rights Section. In a letter dated 27 October 2009, it said the EU free-movement rules did not apply because the man’s stepchild was an Irish citizen living in Ireland and had not shown that he had exercised EU treaty rights in another member state.
The man had previously had his asylum claim rejected and a deportation order made against him. The court dismissed an earlier judicial review challenge to that order on 14 October 2009. On 23 October, he applied for a residence card under Ireland’s 2006 free-movement regulations, as amended, arguing that he was a family member of his Irish-citizen stepson, E.
The applicants argued that E. was a Union citizen entitled to be joined in Ireland by his stepfather, despite having never exercised free-movement rights between member states. They also argued that denying the application amounted to reverse discrimination against an Irish child compared with a child of another member state.
Justice Cooke held that the regulations defined a “Member State” as an EU member state other than Ireland. For the specific entitlements under those regulations, E. therefore did not qualify as a Union citizen whose family member could rely on the rules. The judge also held that the 2004 EU directive applied where a Union citizen moved to or resided in a member state other than the one of which they were a national. E. had been born in Ireland, lived there and had never lived elsewhere in the EU, so the case had no relevant cross-border movement element.
The judgment distinguished the European Court of Justice decisions relied on by the applicants, including Metock and Zhu and Chen, because those cases involved the exercise of movement and residence rights across member states. The court also noted that the man was described in submissions as the family’s long-term primary breadwinner, and could not qualify as a dependent direct relative under the rules.
The court rejected the discrimination argument, finding that a child living in their own member state was not in a like situation to a child of another nationality who had established residence in Ireland. It refused leave, concluding that the proposed argument was manifestly wrong and that granting leave merely to debate it further would be wasteful and oppressive to the respondent. The ruling decided only whether leave should be granted to bring this challenge; it did not reconsider the earlier deportation-order challenge.