The High Court ruled that a parent from outside the EU can claim residence rights through an EU citizen child in a host state only if refusing residence would force the child out of the EU, or back to the child’s home state where the child’s presence in the host state resulted from free movement.
Mr Justice Colm Mac Eochaidh gave the ruling on 11 November 2014 in a judicial review brought by David Nicolas, his Polish partner Ewelina Jozewiak and their daughter, Jessica, a minor suing through her mother. The judgment identifies Nicolas as a Nigerian national and says the child was born in 2008 and had lived in Ireland all her life. The court’s decision addressed an agreed preliminary issue, not the final resolution of the judicial review.
Nicolas had sought permission to remain in Ireland based on his relationship with his daughter. The Minister rejected his application for permanent residence on that basis, saying the child lived in Ireland rather than Poland and that he did not qualify as a family member under the relevant EU free movement rules. He was invited to apply for a residence card based on his relationship with Jozewiak. In March 2013, he was granted permission to remain and work in Ireland on a Stamp 4 basis. The judgment records the State’s submission that a statutory reference in the permission letter was mistaken but caused no prejudice.
The judge considered EU court decisions including Zambrano, Iida and Dereci. He found that Nicolas had not been refused permission to stay in Ireland and currently had permission to reside and work. Even if he faced a future risk of removal, the court said, it had not been shown that his daughter would have to leave Ireland or the EU: she would remain in the care of her mother, whose right to be in Ireland was not in question.
The court answered the preliminary question against Nicolas’s claim based on his daughter. It did not decide whether he was barred from relief because he had not applied for derivative residence rights based on his relationship with Jozewiak. The judge said that issue need not be answered in light of his ruling on the first question. The parties could address whether further matters remained for decision, and the court left open whether to hear the second preliminary issue.