Muraview v The Minister for Justice and Equality

JurisdictionIreland
JudgeMr. Justice Keane
Judgment Date04 July 2018
Neutral Citation[2018] IEHC 403
Docket Number[2016 No. 759JR]
CourtHigh Court
Date04 July 2018
BETWEEN
MAXIM MURAVIEV (AN INFANT SUING BY HIS FATHER AND NEXT FRIEND DMITRY MURAVIEV)

AND

DMITRY MURAVIEV
APPLICANT
AND
THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL
RESPONDENTS

[2018] IEHC 403

[2016 No. 759JR]

THE HIGH COURT

JUDICIAL REVIEW

Residence permission – Charter of Fundamental Rights of the European Union – European Union citizenship – Applicants seeking temporary permission to reside in the State – Whether the respondent's decision deprived the second applicant of his Union law rights under the Charter of Fundamental Rights of the European Union

Facts: The applicants, Mr D Muraviev (the father) and Mr M Muraviev (the child), applied to the High Court seeking to quash the decision of the first respondent, the Minister for Justice and Equality, contained in a letter dated 16 August 2016, refusing to grant the father, who is a citizen of the Russian Federation, temporary permission to reside in the State based upon his parentage of the child, who is a citizen of Ireland, having been born in the State on 1 October 2003. The single proposition of law on which the applicants' claim depended was that Article 20 of the Treaty on the Functioning of the European Union 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. The applicants submitted that the Minister's decision deprived the child of his Union law rights under the Charter of Fundamental Rights of the European Union 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 interests as a child addressed as the primary consideration in the Minister's decision on the father's residence permission application under Article 24.2; and the right to maintain on a regular basis a personal relationship and direct contact with the father under Article 24.3.

Held by Keane J that, having applied Doyle & Anor v The Minister for Justice & Ors [2017] IEHC 374, the applicants could not impugn the Minister's decision, which represented an exercise of an autochthonous sovereign power of the State, on the basis of any asserted breach of any provision of the Charter of Fundamental Rights of the European Union.

Keane J held that, in consequence, their claim must fail.

Application refused.

Judgment 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 interests as a child addressed as the primary consideration in the Minister's decision on the father's residence permission application under Article 24.2; and the right to maintain on a regular basis a personal relationship and direct contact with the father under Article 24.3.

The law
7

Precisely the proposition for...

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