Y (M) and Others v Min for Justice and Others (No 2)

• Jurisdiction: Ireland
• Judge: Mr. Justice Mac Eochaidh
• Judgment Date: 15 January 2015
• Neutral Citation: [2015] IEHC 7
• Court: High Court
• Date: 15 January 2015

[2015] IEHC 7

THE HIGH COURT

[No. 839/J.R./2012]

Y (M) & Ors v Min for Justice & Ors (No 2)

JUDICIAL REVIEW

BETWEEN

M.Y.

AND

R.Y. AND N. Y. (A MINOR SUING BY HIS FATHER AND NEXT FRIEND M. Y.)

AND Z. Y. (A MINOR SUING B HIS FATHER AND NEXT FRIEND M. Y.)

AND F. Y. (A MINOR SUING BY HIS FATHER AND NEXT FRIEND M. Y.) (NO. 2)

APPLICANTS

-AND-

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

-AND-

THE MINISTER FOR FOREIGN AFFAIRS AND TRADE

NOTICE PARTY

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S6(B)

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 20

ZAMBRANO v OFFICE NATIONAL DE L'EMPLOI (ONEM) 2012 QB 265 2012 2 WLR 886 2011 2 CMLR 46 2011 2 FCR 491 2011 AER (EC) 491 2011 ECR I-1177

IMMIGRATION ACT 2004 S2(2)

PRYCE v SOUTHWARK LONDON BOROUGH COUNCIL 2012 EWCA CIV 1572 2013 1 WLR 996 2013 HLR 10

R (ON THE APPLICATION OF YEKINI) v SOUTHWARK LONDON BOROUGH COUNCIL 2014 EWHC 2096 (ADMIN) 2014 AER (D) 83 (JUL)

SULAIMON (AN INFANT) v MIN FOR JUSTICE UNREP SUPREME 21.12.2012 2012/43/12885 2012 IESC 63

ROBERSTON v GOVERNOR OF THE DOCHAS CENTRE UNREP HOGAN 25.1.2011 2011/46/12938 2011 IEHC 24

DERECI v BUNDESMINISTERIUM FUR INNERES 2012 1 CMLR 1311 2012 AER (EC) 373 2011 ECR I-11315

O v MAAHANMUUTTOVIRASTO 2013 FAM 203 2013 2 WLR 1093 2013 AER (EC) 563 (JOINED CASES C-356/11 & C-357/11)

YMERAGA v MINISTRE DU TRAVAIL, DE L'EMPLOI ET DE L'IMMIGRATION 2013 3 CMLR 33 2013 IMM AR 1070 2013 AER (D) 184 (MAY)

HOUSING ACT 1996 S185(2)

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S6(B)(4)

O (A) & ORS v MIN FOR JUSTICE 2003 1 IR 1 2003/31/7267

ROTTMANN v FREISTAAT BAYERN 2010 QB 761 2010 3 WLR 1166 2010 ECR I-1449 2010 3 CMLR 2 2010 AER (EC) 635 2011 CEC 35 (CASE C-135/08)

IMMIGRATION ACT 2004 S5(1)

IMMIGRATION ACT 1999 S3(9)(B)

Judicial Review – Residency – Irish Citizenship – EU Law – Nationality – Practice and Procedures – Family Unity – Non-EU Parents – Family Rights - Irish Nationality and Citizenship Acts 1956 to 2004

Facts: This case concerned an application for judicial review in which the applicants sought, inter alia, declarations that the first and second named applicants" had resided lawfully in the State since May 2002 and that their residency was reckonable within the meaning of the Irish Nationality and Citizenship Acts 1956 to 2004. Such reliefs were also sought in order for the third and fourth named applicants to automatically qualify for Irish citizenship. The first and second named applicants were a married couple from Pakistan who were lawfully residing in the State with their three children. The first named applicant father arrived in the State in 2001 on a student visa and his wife arrived in 2002 without a visa. Their first child, the third named applicant, was born in the State as an Irish citizen in May 2002 (under birth citizenship rules which applied at the time). The fourth and fifth named applicant twins were born in June 2005. It was argued that their rights of residence crystallised on the birth of their EU citizen child. This case arose from an application on behalf of the twins for Irish passports which was rejected by the Minister for Foreign Affairs and Trade because the parents lacked the required period of lawful residence prior to birth being three out of the previous four years (or 1095 days).

Held by Justice Mac Eochaidh that the applicants had interpreted the Zambrano decision incorrectly. They had interpreted the decision as confirmation that EU law granted rights of residence in Ireland to non-EU parents of Irish/EU citizens. They asserted that such rights are enjoyed from the date of birth of an EU citizen child and parents unlawfully present in the State overcome that illegality and automatically enjoy a right to reside and work in a Member State. In addition they asserted that unlawful presence when viewed historically must be refuted. This was deemed to be incorrect and misconceived. Rather, Justice Mac Eochaidh interpreted the judgement as meaning that no such exemption was automatically created by EU law but that there were circumstances where such effect could be found. As no such circumstances were advanced, the Court reasoned that it was difficult to imagine how the child"s EU citizenship is or was impaired by the historic unlawful presence of the parents in the period from the birth of the citizen child until the date they were granted permission to be in Ireland in July 2005. Furthermore, as no provision of EU law exempts third country nationals from complying with the laws of Member States as to residence and employment and because EU law does not automatically confer a right of residence or a right to work or a right to social welfare or any other right on the third country national parents of EU citizen children, it was determined that the argument that the parents in this case were lawfully in the state from the date of birth of their Irish/EU citizen child must fail. The Court dismissed the application.

1 1. This is the second judgment of the court in respect of an application for judicial review in which the applicants seek, inter alia, declarations that the first and second named applicants' have resided lawfully in the State since 5 ^th May 2002 and that their residency is reckonable within the meaning of the Irish Nationality and Citizenship Acts 1956 to 2004. Such reliefs are sought in order for the third and fourth named applicants to automatically qualify for Irish citizenship. A preliminary issue was identified when the matter first came on for hearing and the court delivered its judgment in that matter on 20 ^th March 2013. The court found for the respondents on that occasion, holding that the Minister was correct in discounting the first and second named applicants' residency during the period of 13 ^th February 2004 (the date the Immigration Act 2004 Act came into effect) to 30 ^th June 2005 (the date of birth of the twin children) as not constituting reckonable residence under the Irish Nationality and Citizenship Act 1956 (as amended). (In retrospect, the issue thus decided is not properly to be regarded as a preliminary issue in that its resolution did not dispose of the action.)

2 2. In the view of the parties, the remaining issue to be decided in this matter relates to Ground 5(ii) of the Amended Statement Grounding the Application for Judicial Review dated 27 ^th November 2012, namely that:

"The rights of the third named Applicant under Article 20 TFEU and Article 7 of the Charter, in combination with each of the Applicants' family rights pursuant to the Constitution and the ECHR, have been breached by the Respondent by reason of his refusal to recognise a period of his father's residency which was lawful by reference to EU law, and which has deprived the family unit herein of rights which are ancillary to the first and/or second named Applicants' right of residency and which include the right for the fourth and fifth named Applicants to be citizens of Ireland."

Background:

3 3. It is recalled that the first and second named applicants in this case are a married couple from Pakistan who are lawfully residing in the State with their three children. The first named applicant father arrived in the State on 27 ^th August 2001 on a student visa which was valid from 26 ^th June - 25 ^thSeptember 2001 and later extended to 1 ^st July 2002. His wife arrived in the State without a visa in April 2002. Their first child, the third named applicant, was born in the State as an Irish citizen on 5 ^th May 2002 (under birth citizenship rules which applied at the time). This is the key date for the applicants as they say that their rights of residence crystallised on the birth of this EU citizen.

4 4. The parents applied to the respondent for residency on 12 ^th June 2002 following the birth of this child. This application was not based on EU rights. It appears that no action was taken by the respondent on foot of this application and it is stated on affidavit that the respondent ceased to consider applications for residency made by parents of Irish citizen children with effect from 19 ^th February 2003. No steps were taken in response to the inaction of the respondent. In any event, the parents were granted permission to remain in the State on 19 ^th July 2005 pursuant to the 'IBC/05 scheme' (a scheme for third country national parents of Irish citizen children) to last until 19 ^th July 2007. The fourth and fifth named applicant twins were born on the 30 ^th June 2005. The parents' visas with permission to remain were both renewed and extended on a number of occasions.

5 5. This case arises from an application on behalf of the twins for Irish passports which was rejected by the Minister for Foreign Affairs and Trade because the parents lacked the required period of lawful residence prior to birth being three out of the previous four years (or 1095 days).

Applicants' Submissions;

6 6. The applicants note that the Immigration Act 2004 explicitly provides that nothing in that Act shall derogate from any of the obligations of the State under the Treaties governing the European Communities. As such, it is submitted that once the first and second named applicant parents can show that they would be entitled to a " Zambrano-type" permission, such entitlement is calculable from the birth of their citizen child and this period constitutes 'reckonable residence' within the meaning of section 6B of the Irish Nationality and Citizenship Act 1956. As the third named applicant is an Irish citizen born on 5 ^th May 2002, it is stated that the first and second named applicants' residence is derived from that citizenship status. It is contended that even if their residence permission was not in fact derived from that citizenship status, such right would exist independently owing to the...