AGA v Minister for Justice
| Jurisdiction | Ireland |
| Judge | Ms. Justice Stewart |
| Judgment Date | 16 July 2015 |
| Neutral Citation | [2015] IEHC 469 |
| Docket Number | [2014 No. 477 J.R.] |
| Court | High Court |
| Date | 16 July 2015 |
[2015] IEHC 469
THE HIGH COURT
JUDICIAL REVIEW
Stewart J.
[2014 No. 477 J.R.]
Asylum, Immigration & Nationality – Right of residence – Art. 20 of the Treaty on the Functioning of the European Union – Art. 7 (1) (b) Council Directive2004/38/EC – Adequacy and nature of resources
Facts: The first named applicant being a national of the United Kingdom sought an order of certiorari to quash the decision of the first named respondent refusing the application for residency of the first named applicant. The first named applicant contended that the second named applicant being a minor was entitled to residence in Ireland as the first named applicant was the primary carer of that minor. The first named applicant alleged that she fulfilled the primary condition under art. 20 of the Treaty on the Functioning of the European Union in that both she and the second named applicant were covered by sickness insurance and they were provided for by the partner of the first named applicant.
Ms. Justice Stewart refused to grant certiorari to the first named applicant. The Court held that the term ‘family members’ for the purpose of a union citizen under art. 7 (1) (b) Council Directive 2004/38/EC asserting the right of residence in the host member state would mean the spouse and the dependant direct relative in the ascending line and those of the spouse or partner, as distinct from the subject case where the second named applicant had no link whatsoever with the partner of the first named applicant. The Court further found that under art. 20 of the Treaty on the Functioning of the European Union and the said Council Directive 2004/38/EC, it would be the sufficient resources of the person who claimed to be the primary carer of the minor that had to be considered and not of any other third party. The Court found that in the subject case, since both the applicants were provided for by the partner of the first named applicant who herself was devoid of any means to sustain in the host member state, the adequacy and nature of resources had not been accounted for as contemplated by the European Court of Justice.
This is a hearing for judicial review seeking orders of certiorari to quash the decision of the first named respondent dated the 8th July, 2014, whereby she refused the first named applicant's application for residency. The applicants further seek a declaration by way of an application for judicial review that the second named applicant is entitled to have her mother, the first named applicant, reside in the State without restriction pursuant to European law.
The first named applicant is a Nigerian national who entered the State on the 28th September, 2007, on foot of a visitor visa. She subsequently travelled to the United Kingdom where she entered a relationship with Mr. A.F.A. She subsequently gave birth to their daughter, the second named applicant, on the 8th July, 2011. The second named applicant was born in the United Kingdom and is a British citizen. The first named applicant subsequently ceased her relationship with the second named applicant's father and they are no longer in contact.
The first named applicant returned to Ireland in 2012 together with the second named applicant and began a relationship with a Mr. A.A., an Irish national. The couple do not reside together but state that they plan to live together and ultimately marry. Mr. A.A. is an Irish citizen and works as a carer in a residential respite day care centre in Dublin. He pays the second named applicant's day care costs and provides the first named applicant with €50 per week, occasionally increasing the amount to €75 per week dependent on her needs. Mr. A.A. swore an affidavit on the 25th July, 2014, undertaking to continue to provide for the applicants.
The first named applicant submitted an application for residency on the 24th January, 2014, based, inter alia, on the decision of the Court of Justice of the European Union (CJEU) in C-34/09 Zambrano. By letter dated the 26th July, 2013, on behalf of the first named respondent, an official of the Irish Naturalisation and Immigration Services (INIS) provided reasons by way of a letter to the applicant's solicitors, for the refusal of the aforementioned application, as follows and as is exhibited at p. 162 of the booklet of pleadings:
‘The Minister for Justice and Equality corresponded with your office on the 1st March 2013 informing [you] the Zambrano ruling only applies to non-EEA parents of Irish born citizen children. Given that Ms A[…]'s child does not hold Irish citizenship, the Zambrano ruling would have no effect on her current immigration status or residency rights in the State.
On the 2nd May, 2013 Ms A[…] was informed that she entered and remained in the State without the permission of the Minister for Justice and Equality, the Minister was proposing to make a deportation order in respect of her under the power given to him by section 3 of the Immigration Act, 1999 (as amended).
Please advise your client that she may make written representations to the Minister, setting out reasons as to why a deportation order should not be made against her. Your client is further required to inform the Minister of her immigration history in this State, including how she entered the State without the necessary visa.’
By letter dated the 11th December, 2013, the first named applicant applied for residency based upon, inter alia, article 20 of the Treaty on the Functioning of the European Union and the decision of the CJEU in Zhu and Chen case C-200/02 [2004] ECR 1-9925. That application, as supplemented by further documentation, made representations and presented evidence as follows:
• The second named applicant in these set of proceedings is a national of the United Kingdom residing in this State.
• The first named applicant is the primary parental carer of the second named applicant.
• The applicants are residing with a named person.
• Both applicants have comprehensive private sickness insurance cover.
• The first named applicant's partner, an Irish national, has sufficient resources to provide for the applicants and he makes financial provision for them.
The applicants also base their application on the fact that, in accordance with UK Border Agency rules, the first named applicant has no automatic entitlement to enter and reside in the UK. The Court notes that while this statement was made in the application and was repeated before this Court, no evidence has been adduced to explain and/or substantiate this claim.
By letter dated the 8th July, 2014, from the EU Treaty Rights Section of the Irish Naturalisation and Immigration Service, the first named applicant was notified of a negative decision on her application for residency. Therein, and at p.112 of the booklet furnished to this Court, the following reasons were provided to the applicant:
‘There is no evidence to show that you, the applicant, has sufficient resources to support yourself and your daughter, B[…]A[…], for the duration of your stay in the State. You have not submitted any bank statements in your name or any evidence that you are in a position to support both you and your daughter without becoming reliant on public funds.
It is noted that you state that you and your daughter are supported by Mr. A[…], [address given] and submitted details of his employment and bank statements in his name however this would not be deemed evidence as residing with sufficient resources.
Accordingly, the Minister is not satisfied that you have submitted satisfactory evidence of residing with sufficient resources in the State.’
The respondent further issued the first named applicant with the proposal to deport her from the State.
By order of the High Court dated the 1st August, 2014, the applicants were granted leave to challenge the decision of the respondent exhibited at p.117-119 of the booklet furnished to this Court.
Counsel appearing on behalf of the applicants, Ms. Rosario Boyle S.C., submitted that it is well established that once an EU citizen can provide evidence that she has medical insurance and sufficient resources so that she will not become a burden upon the State, then her primary carer should be given a residence card. The applicants submitted that the source of the resources for the minor EU citizen is immaterial, as long as they are sufficient to ensure that she does not become a burden upon the State.
Counsel relied on article 7(1)(b) Council Directive 2004/38/EC of 29th April, 2004, on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (L229/3529.6.2004) which states:
‘All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they:
(a) are workers or self-employed persons in the host Member State; or
(b) have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State.’
Counsel provided the Court with a summary of the citizenship provisions of the Treaty of the European Union (article 9) as well as the Treaty on the Functioning of the European Union (articles 20, 21, 22, 23, 24, 25). The applicants contended that the first named applicant has a derivative treaty right to reside in the State based upon the right of her union citizen child, who is a dependant,...
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