Muraview & anor -v- The Minister for Justice and Equality & ors, [2018] IEHC 403 (2018)

Docket Number:2016 No. 759 JR
Party Name:Muraview & anor, The Minister for Justice and Equality & ors
 
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THE HIGH COURT

JUDICIAL REVIEW[2016 No. 759JR]

BETWEEN

MAXIM MURAVIEV (AN INFANT SUING BY HIS FATHER AND NEXT FRIEND DMITRY MURAVIEV) AND DMITRY MURAVIEVAPPLICANTAND

THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERALRESPONDENTSJudgment of Mr. Justice Keane delivered on the 4th July 2018

Introduction

  1. The applicants seek to quash the decision of the Minister for Justice and Equality, contained in a letter dated 16 August 2016, refusing to grant Dmitry Muraviev, the second applicant, who is a citizen of the Russian Federation, temporary permission to reside in the State based upon his parentage of Maxim Muraviev, the second applicant, who is a citizen of Ireland, having been born in the State on 1 October 2003 (‘the decision’). For simplicity and convenience, in this judgment I will refer to Dmitry Muraviev as ‘the father’ and Maxim Muraviev as ‘the child’.

  2. Ireland and the Attorney General should not have been joined as respondents to these proceedings. No damages are sought against the State. Nor is the constitutionality of any provision of any law in issue. No relief of any kind is sought against those legal persons.

    The principal ground of challenge

  3. By order made on 6 November 2017, Humphreys J granted leave to the applicants to seek judicial review of the Minister’s decision on the grounds set out at paragraph (d) of their statement of grounds, filed on 5 October 2016. As counsel for the applicants acknowledged in argument, those grounds boil down to the assertion of a single proposition of law.

  4. The single proposition of law on which the applicants’ claim depends is that Article 20 of the Treaty on the Functioning of the European Union (‘TFEU’) precludes the Minister from refusing a residence permission to the third country national parent of a dependent European Union citizen child, where that refusal would deprive that child of the genuine enjoyment of the substance of any right attached to the status of European Union citizenship, rather than only of the right to remain in the territory of the Union as a necessary condition of the genuine enjoyment of the substance of the rights attaching to that status.

  5. The applicants must rely on the broader proposition because, as they concede at paragraph d (1) of their statement of grounds, they cannot bring themselves within the narrower one. This follows from the applicants’ acknowledgment that - for reasons it is unnecessary to go into for the purpose of the present judgment - the refusal of a residence permission to the second applicant would not have resulted in the first applicant having to leave the territory of the Union. The narrower proposition is, of course, that articulated by the Court of Justice of the European Union (‘CJEU’) in Case C-34/09 Ruiz Zambrano [2011] ECR I -1177. It is colloquially known as the Zambrano principle.

  6. The applicants submit that the Minister’s decision deprived the child of his Union law rights under the Charter of Fundamental Rights of the European Union (‘CFREU’) and, in particular, of: the right to have his human dignity respected and protected under Article 1; the right to respect for his private and family life under Article 7; the right to have his best...

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