Doyle (A Minor) v Minister for Justice and Equality
| Jurisdiction | Ireland |
| Judge | Ms. Justice Faherty |
| Judgment Date | 24 March 2017 |
| Neutral Citation | [2017] IEHC 374 |
| Docket Number | [2016 No. 288 J.R.] |
| Court | High Court |
| Date | 24 March 2017 |
[2017] IEHC 374
THE HIGH COURT
JUDICIAL REVIEW
Faherty J.
[2016 No. 288 J.R.]
AND
AND
Asylum, Immigration and Nationality – Refusal for temporary permission to remain in State – Art. 24.3 of the EU Charter of Fundamental Rights of the European Union – S. 3(4) of the Immigration Act 1999 ('the 1999 Act') – Derivatives rights of non-EU parents of EU citizen children
Facts: The applicants sought leave to apply for an order of certiorari for quashing the first named respondent's decision for holding that the second named applicant was not a person who qualified for a right of residence pursuant to the judgments of the European Court of Justice in case C-34/09 Ruiz Zambrano [2011] ECR 1-1177 and case C-256/11 Dereci [2011] ECR 1-11315. The applicants contended that as per the dicta of ECJ in Zambrano, the second named applicant was saved being the father of the EU citizen (the first applicant) in exercise of his derivative rights envisaged under art. 24.3 of the EU Charter of Fundamental Rights of the European Union ('the Charter'), which mandated that every child should have the right to maintain on a regular basis a personal relationship and direct contact with both the parents.
Ms. Justice Faherty refused the reliefs sought by the applicants. The Court held that the decision, which was sought to be impugned in the present case, did not fall within the realm of the EU law and thus, the provisions of the Charter would be of no benefit to the applicants. The Court observed that the impugned decision was taken by the first named respondent in exercise of the executive power of the State under art. 28.2 of the Constitution. The Court stated that the first applicant's rights would remain unaffected by the first named respondent's refusal to renew the temporary permission of the father of the first applicant and there was no risk to the life of the first applicant if he had to travel with the second named applicant to the country of origin.
This is an application for leave wherein the applicants seek, inter alia:
(i) a declaration that the first named respondent was wrong in law in refusing the second named applicant's application for temporary permission to reside in the State and in concluding that the decision of the European Court of Justice ('ECJ') in case C-34/09 Ruiz Zambrano [2011] ECR 1 – 1177 had no applicability to the second named applicant's residency application;
(ii) an order of c ertiorari quashing the first named respondent's decision of 2nd February, 2016, to the effect that the second named applicant is not a person who qualifies for a right of residence pursuant to the jurisprudence of the ECJ in Zambrano and case C-256/11 Dereci [2011] ECR 1 – 11315.
The second named applicant is a Nigerian national.
He is the father of the first named applicant who was born 29th June, 2009 and who is an Irish citizen.
On 7th August, 2013, on the basis of the second named applicant's parentage of the first named applicant (and with knowledge of the second named applicant's then criminal record which included a sentence of two years imprisonment on 30th January, 2012 with one year suspended following which the second named applicant was released on 29th October, 2012), the second named applicant was granted temporary residence in the State. This was on a stamp 4 basis for six months to 7th February, 2014 and conditional upon: (a) the second named applicant obeying the laws of the State; (b) not becoming involved in criminal activity; (c) making every effort to gain employment and not be a burden on the State; (d) residing continuously in the State; (e) accepting the grant of temporary permission did not confer any legitimate expectation on any other person to enter or remain in the State; and (f) playing an active role in the life of his dependant Irish citizen child.
The conviction and sentence imposed on the second named applicant in the Circuit Court was appealed to the Court of Criminal Appeal. On 23rd September, 2013, the Court of Criminal Appeal sentenced the applicant to five years imprisonment resulting in a further period of incarceration until April, 2015.
Consequent upon this, on 25th November, 2013, the first named respondent wrote to the second named applicant advising him that she was intending to revoke his permission to remain in the State. In the interest of fair procedures and natural justice, the second named applicant was afforded a period of fifteen working days to submit any observations or comments as to why the temporary permission should not be revoked.
On 10th December, 2013, representations were made on behalf of the second named applicant as to why he should be allowed to remain in the State. Reference was made to the second named applicant having previously advised the Minister of his criminal conviction and that when released from prison in October, 2012, he had gained employment and had made maintenance payments to his Irish citizen child. The first named respondent was further advised that the second named applicant had commenced residing with his Irish citizen girlfriend (not the mother of his child). It was submitted that the extension of his sentence by the Court of Criminal Appeal was beyond his control and unforeseen by him. The second applicant indicated his willingness to pursue gainful employment once released from prison.
The first named respondent was further advised that the first named applicant had built up 'a very close bond with his father' and that if the second named applicant were to be deported '[the first named applicant] would probably never see his father again and this cannot be in the child's best interests'. It was also contended that the mother of the first named applicant 'would never permit' the first named applicant to move to Nigeria to be with his father and that it would not be in the child's best interests to do so. It was further asserted that even if the applicants could move to Nigeria, the second named applicant 'would have no realistic prospect of gaining employment in Nigeria and would have no means of supporting himself or his family'. It was further asserted that the educational opportunities open to the first named applicant would be significantly less than those available to him in this jurisdiction.
An extract from a letter from the second applicant's partner was set out in support of the second applicant's plea not to revoke his temporary permission.
Further representations were made on living and social conditions in Nigeria and security fears for the first named applicant upon a re-location to that State were highlighted.
Additionally, representations were made in relation to the applicants' rights pursuant to Art. 41 of the Constitution and Art. 8 of the European Convention on Human Rights ('ECHR'). The UN Convention on the Rights of the Child was referenced in the context of the best interests of the first named applicant. It was submitted that the second named applicant was 'entitled to remain in the State by virtue of the fact that he is father of a European and Irish Citizen protected by the Constitution/the European Convention on Rights' and that the applicant's should be allowed to reside in the State in the absence of any exceptional conditions, which did not arise.
It appears that no further action was taken in respect of the revoking the second named applicant's permission to remain. This permission expired on 7th February, 2014.
On 28th May, 2015, the second named applicant made an application to renew his permission to remain in the State on the basis of his parentage in an Irish citizen child.
As stated, the refusal of this application was communicated to the second named applicant by letter of 3rd February, 2016.
This letter states, inter alia:
'I am directed by the Minister for Justice and Equality to notify you that the Minister proposes to make a Deportation Order in respect of you under the power given to the Minister by Section 3 the Immigration Act 1999 (as amended).
The reason for the Minister's proposal is:
I wish to advise that, having considered the representations you submitted in regard to your parentage in a Irish citizen child and all information on file, the Minister has decided not to renew your temporary permission to remain in the State. Please find enclosed a copy of the consideration of your case.'
The letter went on to state that as the second applicant's permission to remain in the State was until 7th February, 2014, his residence in the State thereafter was unlawful. He was advised that he was a person 'whose deportation would, in the opinion of the Minister, be conducive to the common good'. Further to the provisions of s. 3(4) of the Immigration Act 1999 ('the 1999 Act'), the applicant was given the following options: (1) leaving the State before the Minister made a final decision in his case; (2) consenting to the making of a deportation order; or (3) submitting new representations to the Minister under s. 3 of the 1999 Act as to why a deportation order should not be made against him.
On 22nd February, 2016, pursuant to option 3, representations were furnished as to why the deportation order should not be made and the second applicant requested humanitarian leave to remain.
The Minister was advised that the application for leave to remain was without prejudice to any challenge by the second named applicant to the decision of 2nd February, 2016, refusing residency.
The rationale for the refusal of the residency...
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