Nicolas v Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Colm Mac Eochaidh
• Judgment Date: 11 November 2014
• Neutral Citation: [2014] IEHC 526
• Court: High Court
• Date: 11 November 2014

[2014] IEHC 526

THE HIGH COURT

[No. 889 J.R./2013]

Nicolas & Jozewiak v Min for Justice & Ors

JUDICIAL REVIEW

BETWEEN

DAVID NICOLAS, EWELINA JOZEWIAK AND JESSICA NICOLAS (A MINOR SUING BY HER MOTHER EWELINA JOZEWIAK)

APPLICANTS

AND

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

RESPONDENTS

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

ZHU & CHEN v SECRETARY OF STATE FOR THE HOME DEPT 2005 QB 325 2004 3 WLR 1453 2005 AER (EC) 129 2004 ECR I-9925 2004 3 CMLR 48

TREATY ON EUROPEAN UNION ART 20

IMMIGRATION ACT 1999 S3

IMMIGRATION ACT 2004 S4

EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) REGS 2006 SI 226/2006

EUROPEAN COMMUNITIES (FREE MOVEMENT OF PERSONS) (AMENDMENT) REGS 2008 SI 310/2008

EEC DIR 2004/38 ART 2

ALOKPA v MINISTRE DU TRAVAIL DE L'EMPLOI ET DE L'IMMIGRATION 2014 INLR 145

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 20

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 21

MCCARTHY v SECRETARY OF STATE FOR THE HOME DEPARTMENT 2011 AER (EC) 729 2011 3 CMLR 10 2011 INLR 450

EEC DIR 2004/38 ART 3(1)

IIDA v STADT ULM 2013 FAM 121 2013 2 WLR 788 2014 AER (EC) 619 2013 1 CMLR 47

DERECI v BUNDESMINISTERIUM FUR INNERES 2012 AER (EC) 373 2012 INLR 151 2011 ECR I-11315 2012 1 CMLR 45

Permanent residency application -Third country national - Union citizen child - Preliminary issue - Derivative rights of applicant father based on relationship with EU citizen child - Zambrano jurisprudence

Facts The first-named applicant father, Mr David Nicolas, is a national of Nigeria. He is in a non-marital relationship with the second-named applicant, Ms Ewelina Jozewiak. They are parents to the third-named applicant, Ms Jessica Nicolas. Jessica was born on 13 ^th April 2008 and has lived in Ireland all her life. Jessica and her mother are Polish citizens. Her father applied for permission to remain in Ireland based on his relationship with his daughter, relying on Case C-34/09 Zambrano v. Office National de l'Emploi, Case C-200/02 Zhu & Chen v. Secretary of State for the Home Department and Article 20 of the Treaty on the European Union. The respondent rejected his application for permanent residence based on his relationship with his daughter but invited him to reapply on the basis of his relationship with Ms Jozewiak. The respondent stressed that Zambrano rights only apply in circumstances whereby a Union citizen is resident in the Member State of their citizenship. Here the Union citizen in question, namely Jessica, was residing in Ireland and not the Member State of her citizenship, Poland. On 1 ^st March 2013 the respondent granted Mr Nicolas permission to remain on a Stamp 4 basis. The respondent stated that as Mr Nicolas"s child was Polish, he was ineligible under Zambrano jurisprudence. It was deemed Mr Nicolas was "not a qualifying family member of a Union citizen" within the meaning of EC (Free Movement of Persons) Regulations 2006 and 2008, or Directive 2004/ 38/ EC. Consequently, Senior Counsel for the applicant sought to pursue the matter in accordance with treaty provisions only.

Held The judge considered the case of C-86/12 Alokpa v. Ministre du Travail, de I'Emploi et de L 'Immigration but distinguished it on the facts of the case. He considered the relevant jurisprudence: C-34/09 Zambrano v. Office National de l'Emploi; C-434/09 McCarthy v. The Secretary of State for the Home Department; C-40/11 Iida v. Stadt Ulm and Case C-256111 Dereci v. Bundesinisterium Fuer Inneres. The judge stated the jurisprudence of the ECJ was based on a simple principle:-

A third country national seeking to reside in the Union for the purposes of accompanying a Union citizen child must establish that if he or she is refused the right to be present in the host state, the Union citizen will be forced to leave the territory of the Union.

He said that as Mr Nicolas had been granted permission to remain on a Stamp 4 basis it was safe to assume that there was little or no risk of Mr. Nicolas having to leave the Union and it was unlikely that he would be deprived of a right to be in Ireland. The judge stressed it had not been asserted, much less established, that his daughter would be forced to leave Ireland and the EU. He said unlike Zambrano and Alokpa, his Union citizen daughter would have the care and comfort of one parent whose right to be in Ireland was not in question. He concluded a third country national is solely afforded a right of residence (derivative from his EU citizen child residing in a host Member State) if the third country national has established that refusal of his right of residence would force the EU citizen child out of the territory of the Union; or back to the child"s home state (provided the child"s presence in the host state results from the exercise of free movement rights).

-The applicant had not established, and did not seek to establish, that his daughter would be forced to live outside the territory of the Union if his application for permanent residency, based on her citizenship, was refused.

1 1. What are the derivative rights of residence of a third country national parent of an EU citizen child residing in a Member State other than that of its citizenship? This is the preliminary issue which is determined in these proceedings.

2 2. The first named applicant is a national of Nigeria in a non-marital relationship with the second named applicant and they are the parents of the third named applicant. The second and third named applicants are Polish citizens. The minor applicant was born on 13 ^th April 2008, and has lived in Ireland all her life.

3 3. Mr. Nicolas applied for permission to remain in Ireland based on his relationship with his daughter, citing the decision of the Court of Justice in Case C-34/09 Zambrano v. Office National de l'Emploi, Case C-200/02 Zhu & Chen v. Secretary of State for the Home Department and Article 20 of the Treaty on the European Union.

4 4. The respondent rejected Mr. Nicolas's application for permanent residence based on his relationship to his EU citizen daughter but he was invited to reapply on the basis of his relationship with the second named applicant. On 26 ^th July 2012, Mr. Nicolas repeated his application and the respondent replied pointing out that Zambrano rights only applied in circumstances where a Union citizen is resident in the Member State of their citizenship and derived rights can flow from such circumstances only. Here, the Union citizen in question (his daughter) was residing in Ireland, not Poland.

5 5. In further correspondence on this issue, lawyers for Mr. Nicolas stated:

"Please further note that Ms. Jessica Nicolas [the third named applicant] is dependent on Mr. Nicolas. She has resided in the State since birth. She is currently enrolled at Scoil Treasa Naofa Primary School in Dublin and attends on a daily basis. Mr. Nicolas resides with Ms. Ewelina Jozewiak who is his partner and the mother of Jessica. Ms. Josewiak is also a Polish national and an EU citizen. Mr. Nicolas is heavily involved in and plays an extremely active role in Jessica's life. He drops her off and picks her up from school every day."

6 6. A declaration of joint guardianship signed by the adult applicants was submitted with the application.

7 7. On 1 ^st March 2013, the respondent granted Mr. Nicolas permission to remain in the State on a Stamp 4 basis, though it was erroneously stated to be under s. 3 of the Immigration Act 1999, rather than under s. 4 of the Immigration Act 2004. The respondents submit that the error caused no prejudice.

8 8. Further to a complaint as to the absence of reasons and a request for same, the respondent confirmed his decision of 1 ^st March and stated that because Mr.Nicolas's child was Polish, he was ineligible under the Zambrano jurisprudence. The respondent stated that Mr. Nicolas is not a qualifying family member of a Union citizen within the meaning of the EC (Free Movement of Persons) Regulations 2006 and 2008, or Directive 2004/38/EC because he cannot claim dependence on the minor child and he was not permitted to apply for permanent residence as he was not a qualifying family member. He was again invited to apply for a Residence Card as a permitted family member on the basis of his relationship to the second named applicant.

9 9. Ms. McDonagh S.C., for the applicant, accepts that her client does not qualify as a family member within the meaning of Article 2 of the Citizenship Directive ( Directive 2004/3 8/EC) and its domestic implementing measure (the EC (Free Movement of Persons) Regulations 2006) because he is not a dependent family member of a Union citizen in the ascending line. Therefore, the derivative rights of the applicant are advanced on the basis of Treaty provisions only and not on any provision of European secondary legislation.

Preliminary Issue

10 10. The parties agreed that the pleadings and submissions suggested a preliminary issue, the resolution of which might determine the proceedings. The issue which it was agreed that the Court would try is:

"Does a third country national parent enjoy rights of residence derivative from his parental relationship with an EU citizen child residing in a Member State other than that of her Union citizenship in which country the third country national desires to reside."

11 11. It was also agreed, depending on the answer to the foregoing, that the Court would decide whether the applicant was disentitled to the reliefs soughtbecause he had not applied for derivative rights of residence as the spouse or partner of an EU citizen exercising freedom of movement, notwithstanding invitation so to do from the respondent

12 12. In support of a positive answer to the question posed, Ms. McDonagh...