Bakare v Minister for Justice and Equality

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 19 October 2016
• Neutral Citation: [2016] IECA 292
• Docket Number: Appeal Nos. 2016/250
• Date: 19 October 2016

[2016] IECA 292

THE COURT OF APPEAL

Hogan J.

Birmingham J.

Irvine J.

Hogan J.

Appeal Nos. 2016/250

BETWEEN/

OMOTAOY BAKARE

AND

OMOTAOY OLALEKAN KAZEEM BAKARE (AN INFANT SUING BY HIS FATHER AND NEXT FRIEND OMOTAOY BAKARE)

APPLICANTS/APPELLANTS

- AND –

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

Immigration – Judicial review – Residency – Appellant seeking residency in the State – Whether EU law precludes the State refusing residency to the appellant by reason of the fact that he is the father of an Irish citizen child

Facts: The first appellant, Mr Bakare, appealed to the Court of Appeal against the decision of the High Court (MacEochaidh J) made ex parte on the 14th March 2016 as refused to grant him leave to apply for judicial review to quash a decision of the respondent, the Minister for Justice and Equality made on the 16th January 2016. By that decision the Minister had refused to grant the applicant residency in the State. The matter first came before the Court of Appeal on 29th July 2016. The Court considered that the ex parte appeal presented issues of fact and law which might benefit from an inter partes hearing and to this end the Court requested that the appeal should stand adjourned until 3rd October 2016. At the resumed hearing the respondent Minister was put on notice of the application for the first time. The Minister duly filed an affidavit setting out the State’s position with regard to Mr Bakare’s proceedings. The sole issue which arose in this appeal was whether European Union law precludes the State refusing residency to Mr Bakare in the circumstances of this case by reason of the fact that he is the father of an Irish citizen child, the second appellant.

Held by Hogan J that as the appellant had not demonstrated on the particular facts of the case that there was any appreciable risk that the second appellant would be forced to leave the State or the territory of the European Union if he were refused residency in the State, the Court did not consider that the principle in Case C-34/09 Ruiz Zambrano [2011] E.C.R. I-1177 was thereby engaged so far as this case was concerned. Hogan J held that the decision of the Minister to refuse to grant Mr Bakare a residency permit represented the exercise by the executive branch of the sovereign power of the State to control and regulate the rights of third country nationals; it follows that the State was not thereby “implementing” Union law for the purposes of Article 51 of the Charter of Fundamental Rights, so that the Charter has accordingly no application to this case. Hogan J held that, strictly speaking, this was simply an appeal taken by Mr Bakare against the refusal of leave to apply for judicial review, so that the test governing the possible grant of leave remains that of arguability. Hogan J held that it was clear, following a very full inter partes argument in the Court, that at least so far as the facts and circumstances of the present case were concerned, the present application for judicial review was doomed to fail.

Hogan J held that he would accordingly dismiss the appeal and would equally refuse to grant Mr Bakare leave to apply for judicial review.

Appeal dismissed.

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 19th day of October 2016

1 This is an appeal brought by the first named appellant, Mr. Bakare, against the decision of the High Court (MacEochaidh J.) made ex parte on the 14th March 2016 as refused to grant him to leave to apply for judicial review to quash a decision of the Minister for Justice and Equality made on the 16th January 2016. By that decision the Minister had refused to grant the applicant residency in the State. The matter first came before this Court on 29th July 2016 when the appellant, Mr. Bakare, sought to appeal the decision of the High Court. The Court considered that the ex parte appeal presented issues of fact and law which might benefit from an inter partes hearing and to this end the Court requested that the appeal should stand adjourned until 3rd October 2016.

2 At the resumed hearing the respondent Minister was put on notice of the application for the first time. The Minister was represented by solicitor and counsel and she duly filed an affidavit setting out the State's position with regard to Mr. Bakare's proceedings. The sole issue which arises in this appeal is whether European Union law precludes this State refusing residency to Mr. Bakare in the circumstances of this case by reason of the fact that he is the father of an Irish citizen child. No issue has been raised regarding the potential application of Article 41 of the Constitution and it is, accordingly, unnecessary to express any view in respect of any such constitutional question.

3 Before considering the issue of EU law, it is, however, first necessary to set out the background facts.

The background facts

4 Mr. Bakare is a Nigerian citizen who arrived in the State in February 2002 when he applied for asylum on grounds of his ethnicity and his political views. That application was refused on 29th August 2002. Mr. Bakare then appealed that refusal to the Refugee Appeals Tribunal which upheld the decision on 26th May 2003. In its decision the Tribunal concluded that the application was unmeritorious and that the applicant's account lacked credibility. A deportation order was subsequently made by the Minister in respect of Mr. Bakare on 17th September 2003.

5 Mr. Bakare then married his wife, Ms. Titiloa Bakare, in September 2003. They had a child (who is the second appellant), Omomtayo, who was born on 13th March 2004 and that child is an Irish citizen. Ms. Bakare is now a naturalised Irish citizen.

6 Ms. Bakare works as a chef's assistant in Kilkenny. While it is clear that she suffers from a psychiatric condition, this is being medically managed in what appears to be a relatively successful fashion. There is nothing to suggest that her condition has changed adversely since this matter was put before the Minister in October 2009 at a time when the couple made submissions objecting to the proposed deportation of Mr. Bakare.

7 Following the making of the deportation order in 2003 Mr. Bakare did not, however, present to the immigration authorities and he was then classified as an evader. On 8th March 2005 Mr. Bakare then made an application for residency based on the parentage of his Irish citizen child, but this was refused by the Minister on 23rd October 2006 on the ground that he was not of good character. Mr. Bakarae had been convicted of possession of drugs for sale or supply in May 2006 and he received a six months prison sentence.

8 Another child was born to the couple in September 2006, but that child is not an Irish citizen. The mother has two children from a previous relationship, but both children were taken into care by social services (one in this State and the other in the United Kingdom).

9 Having been classified as an evader, Mr. Bakare was arrested and ultimately deported to Nigeria in December 2009. It seems that Mr. Bakare lived there, but endeavoured to return to Ireland. He then obtained a Schengen visa which enabled him to travel to the Netherlands. His wife then travelled there to meet him and he subsequently obtained a three month via to reside in the UK. From there he travelled to Ireland by ferry in March 2014. It is accepted that this re-entry into the State was illegal.

10 The Minister learnt of Mr. Bakare's presence in the State in June 2015 when he again applied for residency based on his parentage of an Irish citizen child and the decision of the Court of Justice in Case C-34/09 Ruiz Zambrano [2011] E.C.R. I-1177. The Minister requested full details of the extent to which the second appellant, Omotayo Jnr., was emotionally and legally dependent on his father. The father responded with a short hand written letter dated 29th July 2015 in which he claimed that he played a ‘major role’ in the lives of his two children by taking them to the school and to the doctor as well as to hurling training. He also claimed that he had remained in regular contact with his family after his deportation. His wife wrote a similar letter in which she maintained that he regularly helped them with their school homework and that he had been a good father to the children.

The Minister's decision

11 In his decision of 16th January 2016 refusing the application for residency the Minister concluded that the Zambrano principle could not avail this applicant, precisely because there was no evidence that his Irish citizen child would be forced to leave the State or the territory of the European Union. As the file note supporting the decision explained:

‘The applicant asserts that he was driven to return to the State by his worries for his family – he contends that his wife has mental health issues and that she finds it difficult to look after their children. He also asserts that he has maintained contact with his family while outside the State and has played a role in their lives. Moreover, he has submitted a hand-written letter, allegedly from his partner, stating that he has been playing a role in his children's lives and has been acting as good father. It is noted, moreover, that several undated family photographs have been submitted. Other than this information and documentation, however, there is nothing on file to suggest that the applicant's children are dependent upon him in the State…..

The circumstances of this family have not changed since the applicant was deported from the State in December 2009. Nor has any substantially new information been presented since Mr. Bakare submitted applications under s. 3(11) of the Immigration Act 1999 (as amended) in January 2009 and May 2011. That is, the Minister has been aware that the applicant is the partner of Titilola Bakare and the father of their two...