The Court of Appeal has dismissed Omotaoy Bakare’s appeal against the refusal of leave to challenge the Minister for Justice and Equality’s decision denying him residency. It also refused him leave to apply for judicial review, finding that his case was “doomed to fail” on the facts and arguments presented at the appeal hearing.
Bakare, a Nigerian citizen, sought residency as the father of an Irish citizen child. The Minister refused his application in January 2016, concluding that there was no evidence the child would be forced to leave Ireland or the European Union if his father were refused permission to remain.
The appeal concerned whether EU law, particularly the principle in Ruiz Zambrano, required the State to grant residency in these circumstances. The court explained that the principle may apply where refusing a non-EU parent’s residence would in practice compel an EU citizen child to leave the Union. It said that the wish to keep a family together, by itself, is not enough.
The court acknowledged that Bakare’s continued presence could support family stability and help his wife raise their children. His wife, a naturalised Irish citizen, had a psychiatric condition that was being medically managed and worked as a chef’s assistant in Kilkenny. But the evidence did not show that she would be unable to care for the children without him. She had remained in Ireland after Bakare’s deportation to Nigeria in 2009, and the court considered it remote that she would leave Ireland with the children if he had to go.
Bakare had first applied for asylum in 2002. After that application and his appeal were refused, a deportation order was made in 2003. The court said he did not present to immigration authorities and was classified as an evader. A 2005 residency application based on his Irish citizen child was refused after his conviction for possession of drugs for sale or supply; he received a six-month prison sentence. He was deported to Nigeria in 2009 and returned to Ireland by ferry in March 2014, a return the judgment says was illegal.
The court concluded that the evidence did not establish an appreciable risk that the child would have to leave Ireland or the EU. It therefore found the Zambrano principle was not engaged. It also held that the Minister’s residency decision was not an implementation of EU law, so the EU Charter of Fundamental Rights did not apply. The appeal was dismissed and leave to apply for judicial review refused. The court stressed that the matter remained an appeal from the refusal of leave, for which arguability is the governing test.