E, F, and Z (A Minor) Suing by her Mother and Next Friend, F v The Minister for Justice and Equality
| Jurisdiction | Ireland |
| Judge | Mr Justice Max Barrett |
| Judgment Date | 30 June 2021 |
| Neutral Citation | [2021] IEHC 438 |
| Docket Number | [2020 No. 337 JR] |
| Year | 2021 |
| Court | High Court |
[2021] IEHC 438
[2020 No. 337 JR]
THE HIGH COURT
JUDGMENT of Mr Justice Max Barrett delivered on 30 th June 2021 .
. Mr E, a third-country national is in a relationship with Ms F, an Irish national. They are both the parents of Miss Z, an infant Irish national. Ms F also has another child by a previous relationship and Mr E acts in loco parentis to that other child. There is a rather sad dimension to their case. Ms F suffers from bouts of serious mental ill-health, so much so that she has to be medicated and has even had to be hospitalised. So she has quite a burden to bear in life. Mr E has helped to lighten this burden. He helps to look after the two children, and Ms F's wider family and acquaintanceship appreciate what he has brought to Ms F's life. This application comes before the court because the Minister has decided to refuse Mr E permission to remain in the State. That decision to refuse is the decision of which review has been sought. The detailed background to the case is best done by way of summary chronology:
7/9/01. Mr E arrives in Ireland based on a Stamp 2 permission which expired on 2.2.14.
2007. Mr E and Ms F meet at a Dublin nightclub.
2007–10. Mr E and Ms F date each other.
2.2.14. Stamp 2 permission expires.
July 2015. Relationship with Ms F, an Irish national, re-commences.
19.4.17. Miss Z, an Irish national, is born. Mr E is the natural father of Miss Z.
9.5.18. Mr E applies for residence in Ireland based on his parentage of Miss Z. Thereafter, there is some ‘to-ing and fro-ing’ of correspondence between Mr E's solicitor and the Department.
21.2.19. Mr E's solicitor seeks a decision in respect of the outstanding residency application.
21.5.19.”
16.7.19.”
26.9.19.”
17.12.19.”
27.2.20. Mr E's application is refused. The main reason for the refusal of the application was that the refusal would not result in Miss Z having to leave the European Union and thus being deprived of the genuine enjoyment of her rights as a European Union citizen. Mr E also received a notice pursuant to s.3 of the Immigration Act, as amended.
. There are three letters before the court from a distinguished consultant psychiatrist. The first two of them were also before the Minister when she made the impugned decision. The first letter (of 19th July 2016) indicates that Ms F has and has had an ongoing history of quite serious mental ill-health. The second letter (of 27th June 2019) refers to Ms F's ongoing mental health difficulties and asks that priority be given to reaching a decision in Mr E's case as the tension of waiting was exacerbating her condition. The third (a letter of 20th January 2021), so post-dating the impugned decision was apparently included to show that following on the Minister's decision Ms F had suffered a relapse in her mental health. I am very sorry that Ms F should have suffered this relapse; however, with every respect, it is not an occurrence that I can factor into my determination as to the lawfulness of the impugned decision.
. Three complaints are made about the Minister's decision (four are mentioned in the statement of grounds but the fourth one got no mention at the hearing and it seemed as if the three points were the sole points being relied upon). First, that the Minister breached the principles of fair procedures, natural and constitutional justice in failing, refusing and/or neglecting to give any weight to or consider the mental health of the second named applicant, including expert reports that were submitted to the Minister in respect of Mr E's application for residency in the State on foot of his parentage of Miss Z; hence the impugned decision, it is contended, is invalid. Second, that the Minister failed, refused or neglected to consider that the first named applicant acts as primary carer to the child, the subject matter of these proceedings because, her mother, the second-named applicant suffers from poor mental health. Third, that the decision section of the impugned decision contains certain factual errors with the result being, the applicants claim, that the Minister's decision is invalid.
. The court notes that in an affidavit of 4th December 2020, the Assistant Principal Officer who approved the impugned decision avers, inter alia, that if, when she made the impugned decision, she had noticed the factual errors in the impugned decision that are now accepted to present she would in any event have reached the same decision. However, the court's focus has to be on the impugned decision that was made, not on a decision that might have been made were a civil servant back in time and knew then what she knows now.
.
. Quite remarkably in all the circumstances of this case, the fact of Ms F's mental ill-health, is nowhere touched upon in the reasoning in the impugned decision.
. Two key decisions of the European Court of Justice arise for consideration: (i) Case C-82/16 K.A. and Ors. [ECLI:EU:C:2018:308]; and (ii) Case C-133/15 Chavez-Vilchez and Ors. [ECLI:EU:C:2017:354].
. K.A. was a preliminary reference made in the context of seven cases between certain individuals and a Belgian asylum/migration body concerning the latter's decision not to examine the respective applications of those individuals for residence for the purposes of family reunification and to issue an order to them to leave Belgium (or to comply with an order to leave Belgium). In the course of its judgment, the European Court of Justice observes, inter alia, as follows:
“ 49 Article 20 TFEU precludes national measures, including decisions refusing a right of residence to the family members of a Union citizen, which have the effect of depriving Union citizens of the genuine enjoyment of the substance of the rights conferred by virtue of their status [as citizens of the Union]
…
76 …[W] here the Union citizen is a minor, the assessment of the existence of such a relationship of dependency must be based on consideration, in the best interests of the child, of all the specific circumstances, including [but not limited to] the age of the child, the child's physical and emotional development, the extent of his emotional ties to each of his parents, and the risks which separation from the third-country national parent might entail for that child's equilibrium. The existence of a family link with that third-country national, whether natural or legal, is not sufficient, and cohabitation with that third-country national is not necessary, in order to establish such a relationship of dependency.”
. Chavez-Vilchez was a preliminary reference made in proceedings between, on the one hand, Ms Chavez-Vilchez and seven other third-country nationals, all mothers of one or more Dutch minors for whose primary day-to-day care they were responsible, and, on the other hand, the competent Netherlands authorities, concerning the refusal of their applications for social assistance and child benefit. Among the questions that arose for the European Court of Justice were whether Art.20 TFEU fell to be interpreted as precluding a Member State from depriving a third-country national who is responsible for the day-to-day and primary care of his/her minor child, who is a national of that Member State, of the right of residence in that Member State. In the curial part of its decision, the European Court of Justice (sitting as the Grand Chamber) concludes as follows:
“ 1. Article 20 TFEU must be interpreted as meaning that for the purposes of assessing whether a child who is a citizen of the European Union would be compelled to leave the territory of the European Union as a whole and thereby deprived of the genuine enjoyment of the substance of the rights conferred on him by that article if the child's third-country national parent were refused a right of residence in the Member State concerned, the fact that the other parent, who is a Union citizen, is actually able and willing to assume sole responsibility for the primary day-to-day care of the child is a relevant factor, but it is not in itself a sufficient ground for a conclusion that there is not, between the third-country national parent and the child, such a relationship of dependency that the child would indeed be so compelled were there to be such a refusal of a right of residence. Such an assessment must take into account, in the best interests of the child concerned, all the specific circumstances, including [but not limited to] the age of the child, the child's physical and emotional development, the extent of his emotional ties both to the Union citizen parent and to the third-country national parent, and the risks which separation from the latter might entail for the child's equilibrium.”
. As counsel for the applicants has noted in his written submissions, the cumulative effect of K.A. and Chavez-Vilchez is that the European Court of Justice is now such as to require, in cases such as that here presenting, a close analysis of the relationship between the third country national and the child before deciding whether, for example, that person can be refused permission to remain in the European Union.
. In each of Patel and Shah (two unrelated cases), the claimant was a third-country national who had no right of residence in the United Kingdom but was the primary carer of a United Kingdom national. The claimant in the first case cared for his father, while the claimant in the second case cared for his son. In each case the claimant maintained that he had a derived right of residence pursuant to Art. 20 TFEU on the basis of his being the primary carer of an EU citizen who would be compelled to leave the Union if the...
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E, F, and Z (A Minor) Suing by her Mother and Next Friend, F v The Minister for Justice and Equality (No. 2)
...22 nd July 2021 . I Introduction 1 . It is perhaps testament to the cost of High Court proceedings that the court's principal decision ( [2021] IEHC 438) in this matter has been followed hard on by a relatively hotly contested costs 2 . The essential findings of the court in its primary dec......