The High Court refused leave to bring a judicial review challenge to the refusal to renew a Nigerian father’s temporary permission to remain in Ireland, finding the applicants had not established the required arguable grounds.
Ms Justice Faherty delivered judgment on 24 March 2017 in an application by an Irish citizen child, suing through his father and next friend, and by the father. They sought to challenge the Minister for Justice and Equality’s decision that the father did not qualify for a right of residence under the European Court of Justice’s Zambrano jurisprudence. The court’s decision concerned leave to seek judicial review; it did not determine a deportation order.
The father had received six months’ temporary permission in August 2013, based on his parentage of the child and subject to conditions including obeying the law, residing continuously in Ireland and taking an active role in the child’s life. After the Court of Criminal Appeal increased his sentence to five years in September 2013, the Minister notified him of an intention to revoke the permission. The judgment says it appears no further action was taken on that notice, and the permission expired in February 2014.
In May 2015, the father applied to renew his permission. The Minister refused in a decision communicated in February 2016, stating that a deportation order was proposed and offering him statutory options, including making further representations. The Minister’s consideration said the child lived with his Irish citizen mother and would not be forced to leave the European Union if his father were refused residence. It also concluded that the father had not demonstrated a dependent relationship with the child.
The applicants argued that Zambrano should extend beyond cases where a child would have to leave the EU. They relied on other rights, including a child’s right under Article 24(3) of the EU Charter to regular personal relations and direct contact with both parents. They submitted that refusing the father residence could diminish the practical benefit of the child’s rights.
Justice Faherty rejected that argument at the leave stage. Relying on prior Irish and EU case law, including the Court of Appeal’s decision in Bakare, she said the Zambrano principle applied where refusal of residence would in practice oblige the EU citizen child to leave the Union. The court had no evidence of even a remote risk that this child would have to leave the EU because of the refusal, and the applicants did not contend otherwise.
The judge also held that the EU Charter could not assist the applicants because the residence decision was not made while Ireland was implementing EU law. She concluded that the threshold for leave had not been met. The judgment records no final determination of the proposed deportation order.