O. P. A. v Minister for Justice, Equality and Defence

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Barr
Judgment Date30 July 2014
Neutral Citation[2014] IEHC 384
Date30 July 2014

[2014] IEHC 384

THE HIGH COURT

[No. 175 J.R./2012]
A (O) & A (OP) (a minor) v Min for Justice
JUDICIAL REVIEW

BETWEEN

O. A. AND O. P. A. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND O.A.)
APPLICANTS

AND

MINISTER FOR JUSTICE, EQUALITY AND DEFENCE
RESPONDENT

Judicial Review – European Union Law – Residency – Minster of Justice, Equality and Defence – Freedom of movement – Non EU Primary Carer – Interpretation of EU Law – Right to Work

The facts of this case involved a decision by the Minister for Justice, Equality and Defence (Respondent) to refuse the applicants an entitlement to apply for Stamp 4 residency pursuant to European Union Law. The first applicant, a Kenyan national is the mother and primary carer of the second applicant, a German national. Seeking the decision quashed, the applicants, applied by way of judicial review for an order of certiorari quashing the decision of the Minister for Justice, Equality and Defence. The issue was adjudicated on before Barr J. in the High Court.

After deciding that judicial review was appropriate in the circumstances Barr J. carefully considered the personal circumstances of the applicants and the party submissions.

Counsel for the applicants submitted that the second named applicant is exercising her right to freedom of movement by electing to reside in Ireland. The first named applicant claims that she has a right to remain in Ireland with the second applicant. The applicants relied on European case law such as Zhu and Chen v. Secretary of State for the Home Department [2004], as this established that in order for the minor EU citizen's right to free movement to be of useful effect, that right had to encompass a right of residence in the host Member State for the minor's primary carer. Counsel for the applicant argued that the first applicant, a non-EU national, acquired a derivative right of residence in the United Kingdom through her child. In regards to providing resources, for her child, counsel argued that the interpretation of resources is broad and that the mother is entitled to work to provide these resources. The respondents argued that Chen residence is limited to a right to reside and does not include a right to work. Barr J weighed up the opposing arguments and was not convinced that the respondent's interpretation was correct. Barr J decided that the so-called Chen right is the right of the primary carer to work in the host country and the Minister must have regard to the definite prospect of future resources, such as those stemming from an offer of employment, which an applicant has accepted. In conclusion Barr J. made an order quashing the decision of the respondent to refuse the applicant's application for Stamp 4 residency pursuant to EU law.

Introduction
1

1. This is a judicial review application for an order of certiorari quashing the decision of the Minister for Justice, Equality and Defence (the respondent) notified by letter dated 6 th February, 2012, to the effect that the first named applicant is not entitled to apply for Stamp 4 residency pursuant to European Union Law; and seeking a declaration that the first named applicant is entitled to apply for Stamp 4 residency pursuant to European Union Law.

Background
2

2. The first named applicant is a Kenyan national, who arrived in Ireland on 31 st March, 2008. She was accompanied by her daughter, O.E.A. The first named applicant and her daughter applied for asylum on 25 th April, 2008. She asserted that she had a well founded fear of persecution on account of her political affiliation. The first named applicant stated that on 6 th January, 2008, a group of armed men came to her family home in Nairobi, Kenya, and demanded a list of names from her husband who, she said, was a treasurer in the Orange Democratic Movement. When he refused to provide the names, the applicant stated that her husband was beaten and shot dead, along with two of her children. Two days after the murder of her husband and two children, the first named applicant claimed that the men came again at night with guns and other weapons and searched her house. Thereafter, according to the first named applicant's account, they kept coming every night, sometimes shooting into the air. As a result of this, the first named applicant explained that she was very frightened, was unable to sleep or eat, and suffered from headaches, trauma, and nightmares.

3

3. The first named applicant sought protection in her House Fellowship where she claims to have met a woman called Comfort who helped her travel to Ireland. The first named applicant travelled with her daughter to Ethiopia and then through France to Ireland, where they arrived on 31 st March, 2008.

4

4. In her application for refugee status questionnaire, dated 16 th April, 2008, the applicant said that she did not report the murder of her husband and two children to the police because the gang responsible might be working for the authorities and she was afraid that the authorities might leak the secret of her whereabouts. The applicant did not attempt to relocate to another part of Kenya because she said, "I was afraid the gang would fish me out because my late husband was popular". The first named applicant further asserted that she feared that if she and her daughter were returned to Kenya they would both be killed by the gang.

5

5. The first named applicant was interviewed pursuant to s. 11 of the Refugee Act 1996 (as amended) (hereinafter referred to as the "1996 Act") on 8 th September, 2008. On 15 th September, 2008, the Refugee Applications Commissioner (hereinafter "the RAC") concluded that the applicant had failed to establish a well founded fear of persecution, as required by s. 2 of the 1996 Act, and recommended that the applicant and her daughter should not be declared refugees. The Refugee Appeals Tribunal (hereinafter "the RAT") affirmed the RAC's recommendation on 20 th February, 2009. The applicant then applied for subsidiary protection under the European Communities (Eligibility for Protection) Regulations 2006 ( S.I. 518/2006) on 21 st April, 2009. According to the affidavit of Mr. Aengus Casey, HEO of the Department of Justice and Equality dated 16 th October, 2013, this application is still awaiting determination.

6

6. In 2008, shortly after her arrival in Ireland, the first named applicant met Mr. A.O., a Nigerian born German national, and they commenced a relationship. The first named applicant became pregnant with Mr. O.'s child and, on 16 th June, 2010, the second named applicant, O.P.A., was born. The second named applicant is a German national by descent.

7

7. The first named applicant states in her affidavit of 27 th February, 2012, that her relationship with Mr. O., who also had a family in Germany, ended shortly after the birth of their daughter, but that they maintained contact solely for the purpose of raising their daughter. In a subsequent affidavit sworn on 22 nd October, 2013, the first named applicant gave a different version of events. She explained that although the original details she gave to the refugee offices were "correct to the extent of my knowledge at that time", her relationship with Mr. O. did in fact break down before she knew that she was pregnant, and she was unable to contact him. This inconsistency in the first named applicant's story was put in issue by the respondent at the hearing of this case. Counsel for the respondent submitted that even if the court were minded to find for the applicant in this matter, judicial review is a discretionary remedy and the court should decline to exercise its discretion in light of the first named applicant's dishonesty.

8

8. The first named applicant asserted that she believed that Mr. O. was Nigerian, as he was born in Nigeria. Because her relationship with him had broken down before she knew she was pregnant, the applicant was unaware that her daughter was a German national by descent. The first named applicant thus applied for asylum on behalf of her new-born daughter, the second named applicant, on 24 th July, 2010. To this end, the first named applicant was interviewed pursuant to s. 11 of the 1996 Act on 20 th September, 2010. She claimed that if returned to Kenya, she and her daughter, the second named applicant, would be in danger of being murdered by the same gang who murdered her husband and two other children in January 2008. When asked about the possibility of internal relocation she again claimed that her husband was a popular man and that the people looking for her would be able to locate her. As regards the father of the second named applicant, she stated that he was Nigerian but that they had ceased contact before she found out that she was pregnant. On 12 th October, 2010, the RAC recommended that the second named applicant should not be declared a refugee. The first named applicant appealed this recommendation to the RAT and following hearings in January and February 2011, the RAT affirmed the RAC's recommendation on the basis that the first named applicant had failed to establish a well founded fear of persecution.

9

9. The second named applicant subsequently applied for subsidiary protection and, according to the affidavit of Mr. Aengus Casey, dated 16 th October, 2013, this application is still awaiting determination.

The applicant's present circumstances
10

10. According to the first named applicant, the second named applicant's father, Mr. O., continues to live in Ireland and visits their daughter on an informal basis. He also pays maintenance of Ç30 every two weeks. However, the first named applicant wants to provide for her daughter without Mr. O.'s assistance and, to that end, is anxious to take up employment in Ireland. She has taken a number of courses of education during her time in Ireland, including a...

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