The High Court rejected a judicial review challenge to the Minister for Justice and Equality’s refusal to grant residence permission to the Russian citizen father of an Irish-born child, holding that the EU Charter of Fundamental Rights did not apply to the decision.
The case was brought by the father and his child, who was suing through his father and next friend. They sought to quash a ministerial decision contained in a letter dated 16 August 2016. The child was born in the State on 1 October 2003.
The applicants argued that Article 20 of the Treaty on the Functioning of the European Union prevented the Minister from refusing residence permission where that refusal would deprive a dependent EU citizen child of the substance of rights attached to EU citizenship. They relied on Charter protections concerning human dignity, private and family life, the child’s best interests, and regular contact with a parent.
The applicants accepted, however, that the refusal would not require the child to leave the EU. The High Court said that this meant they could not rely on the narrower Zambrano principle, under which a non-EU parent may derive a residence right where refusing it would, in effect, force an EU citizen child to leave the Union. Instead, they advanced a broader argument that the Charter rights applied even without that consequence.
Mr Justice Keane said the court had already rejected that broader proposition in earlier cases. He referred to decisions holding that the Charter applies to Member States only when they are implementing EU law. The child was not exercising free-movement rights under the Citizenship Directive, and the applicants did not argue that the Family Reunification Directive applied to their circumstances.
The court concluded that the Minister’s refusal was an exercise of the State’s sovereign power to regulate the status of third-country nationals, not an implementation of EU law. It therefore held that the applicants could not challenge the decision on the basis of an alleged breach of the Charter. Their claim failed. The judgment does not state a separate order quashing or otherwise varying the Minister’s decision.