The High Court refused leave to seek judicial review of the Minister for Justice and Equality’s handling of a Pakistani man’s application to reside and work in Ireland based on his relationship with his Irish citizen daughter.
The ex parte application, heard on 14 May 2012, sought an order of mandamus requiring the Minister to decide the application within a reasonable time. Mr Justice Cooke gave written reasons for refusing leave. The court did not decide a substantive judicial review; it held that no arguable case had been shown for permission to bring one.
The man entered Ireland in October 2003 on a visitor’s visa and later overstayed, the judgment said. He had received permission to reside and work after marrying an Irish citizen in 2009. That permission was renewed to 11 January 2012. The couple were living apart by March 2011 but were not divorced.
His daughter, born in 2007, was an Irish citizen and lived with her Estonian mother, who had been resident in Ireland since 1999. The father said he saw the child two or three times a week and contributed financially. A letter from the mother, which appeared unsigned, reportedly confirmed those arrangements.
In June 2011, his solicitor applied for permission based on his parentage, arguing that the child was dependent on him and that EU and constitutional rights supported his residence and employment. The Department refused the application by letter on 27 July 2011, saying he already had residence and employment rights and that the Zambrano judgment offered him nothing extra at that time.
The judge said that letter was a decision on the application. If the applicants considered its reasoning wrong or inadequate, the proper course was to challenge it, including by seeking certiorari if necessary. Repeatedly requesting a decision could not turn the refusal into a failure to decide, and the Minister’s duty to consider the application had been discharged.
The court also said the applicants’ reliance on the EU Court of Justice’s Zambrano ruling rested on a misconception. It explained that the relevant protection concerned the EU citizen child’s ability to enjoy the substance of EU citizenship rights. On the authorities discussed, that could require permission for a non-EU parent to remain and work only where the child’s dependence meant that removing the parent would compel the child to leave the EU.
The judge found no evidence meeting that threshold: the child lived with and was cared for by her EU citizen mother, and there was no suggestion she was at risk of leaving Ireland. The judgment also noted no evidence that the father’s existing permission would not be renewed, that renewal had been sought, or that deportation had been proposed. Any future family-life claim, it said, would arise in a different situation. Leave was refused.