E.O. v Minister for Justice and Equality

JurisdictionIreland
JudgeMs. Justice Power
Judgment Date13 August 2020
Neutral Citation[2020] IECA 246
Docket NumberRecord Number: 2018/131
CourtCourt of Appeal (Ireland)
Date13 August 2020
BETWEEN/
E.O.

AND

A.O.

AND

C.M.O. (AN INFANT SUING BY HER MOTHER AND NEXT FRIEND E.O.)

AND

C.M.O. (AN INFANT SUING BY HER MOTHER AND NEXT FRIEND E.O.)

AND

C.M.O. (AN INFANT SUING BY HER MOTHER AND NEXT FRIEND E.O.)
APPELLANTS
- AND -
MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL
RESPONDENTS

[2020] IECA 246

Costello J.

Ní Raifeartaigh J.

Power J.

Record Number: 2018/131

THE COURT OF APPEAL

Judicial review – Visa application – EU law – Appellants seeking an order of certiorari quashing a decision made by the first respondent to refuse a visa to the second appellant – Whether judicial review was an effective remedy by which the appellants’ rights could be vindicated

Facts: The appellants appealed to the Court of Appeal against the judgment of the High Court ([2017] IEHC 816) delivered on 15 November 2017 and its order of 15 December 2017 wherein the trial judge (Faherty J) refused to grant an order of certiorari quashing a decision made by the first respondent, the Minister for Justice and Equality, to refuse a visa to the second appellant. The appellants raised six questions which they submitted were the issues to be decided on appeal: (a) whether the High Court erred in not dealing with the issues raised by the appellants on the basis put forward; (b) whether the Zambrano judgment (Zambrano v Office National de I’Emploi (Case C-34/09) 8 March 2011, [2011] ECR I-1177) was relevant to the appellants’ claim; (c) whether the court’s function in judicial review is confined to ascertaining whether the impugned decision was proportionate, within jurisdiction and not irrational and unreasonable; (d) whether any potential cost to public funds was a relevant consideration in deciding whether to admit the second appellant to the State; (e) whether the consideration of ‘less restrictive measures’ was properly dealt with by the decision maker and/or the High Court; and (f) whether judicial review is an effective remedy by which the appellants’ rights can be vindicated.

Held by Power J that the Minister’s refusal of the second appellant’s visa application represented the exercise, by the executive branch, of the State’s sovereign power to regulate the rights of third country nationals. Power J held that the decision in question did not involve the implementation of EU law for the purposes of Article 51 of the Charter of Fundamental Rights of the European Union. Accordingly, Power J found that the Charter had no application to this case. On the facts of this case, Power J held that neither the test of compulsion in Zambrano nor the requirements of dependence in Chavez-Vilchez v Raad van bestuur van de Sociale verzekeringsbank (Case C-133/15) 10 May 2017 had been met. Power J held that the appellants had failed to establish that a derived right of residence accrued to the second appellant based on the minor appellants’ status as EU citizens. Having reviewed the individual assessment conducted by the Appeals Officer in this case, Power J was satisfied that he was entitled to find that the second appellant constituted a genuine, present and sufficiently serious threat to the requirements of public policy and public security such as would justify a refusal of residence compatible with EU law. Power J found that as the implementation of EU law was not in issue in this case, the right to an effective remedy in compliance with the terms of Article 47 of the Charter did not arise. Power J held that the trial judge did not err in her articulation and application of the relevant legal principles in respect of judicial review as an effective remedy in domestic law.

Power J held that the appeal would be dismissed.

Appeal dismissed.

JUDGMENT of Ms. Justice Power delivered on the 13 th day of August 2020
1

This is an appeal against the judgment of the High Court ( [2017] IEHC 816) delivered on 15 November 2017 and its order of 15 December 2017 wherein the trial judge (Faherty J.) refused to grant an order of certiorari quashing a decision made by the first named respondent (‘the Minister’) to refuse a visa to the second named appellant.

2

The impugned decision of the Minister concerned the refusal of a visa application made by the second named appellant (A.O.) who is the father of the third, fourth and fifth named appellants and the partner of the first named appellant (E.O.).

Part I Background Facts and Proceedings
3

E.O. is originally from Nigeria. She entered the State on 8 October 2004 and two months later gave birth to her first born child, the third named appellant. Her partner. A.O.. also entered the State in 2004 and remained only for a number of weeks. He was here for the birth of the child and he left shortly thereafter. The following year, E.O. was granted residence in the State pursuant to the Irish Bom Child Scheme 2005 under which the non-national parents of a child born in Ireland before 1 January 2005 could apply for leave to remain in the State on the basis of their parentage of an Irish born child. E.O. and A.O. have two more children – the fourth and fifth named appellants – who were born in 2008 and 2011, respectively. On 13 December 2012. E.O. was granted a Certificate of Naturalisation. E.O. and her three daughters are all Irish citizens.

4

A.O. was granted a short stay visa in respect of his entry into the State in 2004. He has visited Ireland on a number of occasions since then. 1 E.O. and her children have also visited A.O. in Nigeria several times. Photographs on file indicate that the family met on several occasions, including, in March and June 2006 (Nigeria), in 2008 (location not indicated), in 2009 (France) and in 2014/2015 (Nigeria). As their third daughter was born in March 2011, it is reasonable to assume that A.O. and E.O. also met in 2010.

5

On 15 April 2011, the Irish Naturalisation and Immigration Services (‘INIS’) within the Department of Justice, Equality and Law Reform received a letter from A.O. wherein he sought to apply for permission to join E.O. in the State on foot of the Zambrano decision. 2 On 14 June 2011 INIS replied and advised A.O that if he wished to obtain permission to enter and reside in the State, he must first apply to the relevant Irish Embassy or consulate in his country of residence for a visa. Nothing further was heard in respect of that application.

6

The evidence indicates that A.O. has lived in various countries, including, Austria. France and Nigeria. Whilst resident in France, he was charged in respect of repeated offences for possessing, transporting and offering/selling unauthorised drugs in Village-Neuf, Alsace, over a period that ran from January 2009 until October 2011. He was convicted in respect of six offences, including, recidivist drug related crimes and other offences. In addition to a term of imprisonment, he was fined and had imposed upon him a 10-year prohibition on re-entering French territory.

7

On 4 July 2015, A.O. applied for a visa to come to Ireland in order to join his family. His application was made through the Irish Embassy in Abuja, Nigeria. The application was refused on 22 July 2015 on a number of grounds. A.O.'s finances were deemed to be insufficient insofar as E.O. had not demonstrated her ability to support him, financially, if he were granted a visa. Insufficient documentation had been submitted in support of the application. The terms of the Zambrano judgment could not be applied to a third country national (‘TCN’) parent of an Irish born citizen child who had been convicted of serious and/or persistent criminal offences, and accordingly, Zambrano did not apply. Other grounds of refusal included the cost to public funds and to public resources. Absent the submission of evidence of an ongoing family relationship, it was not accepted that any family rights under Article 8 of the European Convention on Human Rights (‘the ECHR’) arose.

8

On A.O.'s behalf, his solicitors appealed this refusal by letter dated 16 September 2015. Enclosed with that letter was one written by A.O. some years earlier on 8 September 2009. He submitted that E.O. was unable to work due to difficulties in taking care of her children. The fourth named appellant had medical problems. Letters from the Children's University Hospital indicated difficulties mobilising and co-ordinating her limbs and referred to a nail injury to her right index finger. If granted a visa, A.O. would take up employment in Ireland as soon as possible and would not rely on public funds. A.O. had complied with the conditions on a short stay visa granted in 2004. Before entering France in 2009, A.O. had lived in Vienna for some time. He was convicted in France for a drug offence in 2011 (sic). 3 He was sentenced to 4 years in prison, of which he served 34 months. It was his first ever conviction and he was extremely sorry. In prison, he transferred money to E.O. to help support her and his children. He continues to support his family in Ireland by paying for their travel tickets so that they can visit him in Nigeria. Such an arrangement was not practical long term as it creates a financial burden and causes stress. He undertook to discharge all expenses in connection with his stay in Ireland and to find employment. Two letters of support from E.O. dated 8 September 2015 and 14 September 2015 were included in support of his application stating, inter alia, that A.O. was very involved in his children's lives and that they talked to each other by phone almost every day.

9

On 10 November 2015 the Visa Office of the Irish Embassy in Abuja sought further information from A.O. in relation to his appeal. Information on A.O.'s family's details and immigration history was sought as was clarification regarding the extent of the fourth appellant's movement disorder and the care and the treatment she required. Additional information was also sought concerning A.O.'s conviction.

10

By e-mail dated 30 November...

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