High Court dismisses asylum applicant's judicial review and subsequent residence card application based on stepfather status.

Neutral Citation Number: [2009] IEHC 531

THE HIGH COURT

JUDICIAL REVIEW

2009 1139 JR

BETWEEN

AN.O., AM.O. AND E.I. (A MINOR SUING BY HIS MOTHER

AND NEXT FRIEND AM.O.)

APPLICANTS

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

JUDGMENT of Mr. Justice Cooke delivered on the 3rd day of December, 2009

1. The first named applicant is from Nigeria, and is in the State illegally, his claim for asylum having been rejected, both

by the Refugee Applications Commissioner and, on appeal, by the Refugee Appeals Tribunal, in a decision of 12th

December 2006. A deportation order was made against him on the 8th May 2008, which was sought to be quashed by

judicial review. In a judgment given on 14th October 2009, this Court dismissed the application for judicial review.

2. The second-named applicant is also from Nigeria. She arrived in the State in September 2002, and applied for asylum.

The third named applicant, E., was born in the State to the second named applicant on 2nd January 2003, but his natural

father is a former, unnamed partner of his mother, and not the first named applicant. This child is an Irish citizen, and it

was on that basis that after his birth, the second named applicant withdrew her application for asylum, and sought and

obtained permission to reside in the State with that child, and she currently has such a permission until 2010. The first

and second named applicants say that they met in the United Kingdom in 2004, and they were married here on 8th March

2007. Together, they have two other children, who were born in the State in July 2005 and May 2007, respectively, but

are not Irish citizens.

3. Following the judgment of 14th October 2009, the first named applicant applied, on 23rd of October 2009, to the

Minister for a residence card, that is to say, for permission to enter or remain in the State, under the provisions of the

European Communities (Freedom of Movement of Persons) (No. 2) Regulations 2006, S.I. No. 656/2006, as amended by

S.I. 310 of 2008. The application was made on the basis that he is the stepfather, and therefore a “family member” of a

Union citizen, namely, E., the third named applicant. This application is said to have been provoked or inspired by a

concession on the part of the State recorded in paragraph 21 of the judgment of 14th October 2009, to the effect that

the first named applicant was accepted to be part of the family of the second and third named applicants. That

concession was, however, confined to the particular grounds raised in that case, based on the rights said to be protected

by Article 8 of the European Convention of Human Rights.

4. The application for a residence card was rejected in brief terms by a letter of 27th October 2009, from the EU Treaty

Rights Section of the Irish Naturalisation and Immigration Service of the Minister’s Department. The letter said:

“Please note that Irish citizens residing in the State are excluded from the benefit of Directive 2004/38/EC of the

European Parliament and of the Council, of 29th April 2004, in accordance with Article 3.1, unless the Irish citizen

can provide evidence that he/she exercised his/her EU Treaty rights in another European member state. Article 3.1

of the Directive shall apply to all Union citizens who move or reside in a member state, other than that of which

they are a national. Therefore, as your stepchild is an Irish national, the Directive and Regulations 656/2006, as

amended, do not apply to you.”

5. The applicants now seek leave to apply for an order of certiorari by way of judicial review, to quash that refusal to

consider the application, upon the ground that the reason given is wrong in law. The decision to be thus contested does

not come within the scope of section 5(1) of the Illegal Immigrants (Trafficking) Act 2000, so that the ordinary standard

of Order 84 of the Rules of the Superior Courts upon consideration of an applicant for leave, applies.

6. S.I. 656/2006, entitled The European Communities (Free Movement of Persons) (No. 2) Regulations 2006, was adopted

on 18th December 2006, for the express purpose of transposing into national law in this jurisdiction Directive 2004/38/EC

of the European Parliament and of the Council of 29th April 2004, on the right of citizens of the EU and to their family

members to move and reside freely within the territory of the member states (“the 2004 Directive”).

7. In passing, it may be useful to record for future reference that the directive in question was adopted on the eve of the

accession of ten new member states on 1st May 2004, and was published in the Official Journal of 30.4.2004 at OJ L 158,

p. 37. The text thus published was incomplete in several places. A corrigendum of the full text was subsequently

published in OJ L 229, p.35, of 29.6.2004, but was there designated Council Directive 2004/58/EC. It was not until 28th

July 2005, that there appeared in OJ L 197 p. 34, a further corrigendum which reconfirmed the designation of the Directive

as bearing the sequential number 2004/38/EC. It is this text which is referred to hereinafter as the 2004 Directive.

8. The Irish Regulations were subsequently amended by S.I. 310/2008, which substituted new text for sub-paragraphs 1

and 2 of Regulation 3. The Regulations as thus amended are hereinafter referred to as the “2006 Regulations”.

9. The essential argument advanced in this case is that the applicants’ son, E., is a Union citizen and is entitled, under

the 2006 Regulations and the 2004 Directive, to be joined in the State by his stepfather who is a “qualifying family

member”, or perhaps, in the alternative, a “permitted family member”, and that it is immaterial in this regard, both that

the third named applicant is an Irish national residing here, in addition to being a Union citizen, and that E. has not

exercised, and is not now exercising, any right of movement between two member states and the Union. It is further

argued that the way in which the 2006 Regulations implement the 2004 Directive, gives rise to a form of reverse

discrimination against E. in that, as an Irish national residing in Ireland, he is at a disadvantage in being joined by his

stepfather, as compared with the child who is a national of any other Member State residing in Ireland. It is only his Irish

nationality, it is argued, which prevents him benefiting from the provisions of the Directive, in these circumstances.

10. As counsel for the Minister has pointed out, the short answer to these arguments is that neither the 2006 Regulations

nor the 2004 Directive, (assuming quod non that there is any discrepancy between the two measures,) have any

application, either to E. or to his stepfather, the first named applicant. E. is undoubtedly, as an Irish citizen, also a citizen

of the Union, in the Treaty sense of that term. But in the 2006 Regulations, while the term “Union citizen” is defined in

Regulation 2 as meaning “any person having the nationality of a Member State”, the words “Member State” are in turn

defined as, “A Member State of the European Union, other than the State”. Thus, for the specific purpose of the

entitlements arising under the 2006 Regulations, E. is not a Union citizen. It follows that for the purpose of relying on the

provisions of Regulations 4 and 5 of those Regulations to enter or remain in the State, as either a qualifying or permitted

family member, the first named applicant is not a family member of a citizen of Member State of the European Union.

11. The question then arises as to whether those limitations are valid as being compatible with the 2004 Directive. In the

Court's judgement, they are. The essential objective of the 2004 Directive is to facilitate the exercise of the fundamental

Treaty right of free movement of persons. Thus, its beneficiaries are defined in Article 3, paragraph 1 as, “Union citizens

who move to or reside in a member state, other than that of which they are nationals, and the family members who

accompany them or join them there.” In other words, the Community law objective is to make it possible for Union citizens

to move within the territory of the member states, with a view to taking up employment or residence, and to prevent

obstacles to that freedom being created by their inability to be accompanied or joined by their most intimate relations or

immediate dependants.

12. As an obstacle to the exercise of that right, the reality of the impediment is not greater or less, depending upon

whether the relevant family member is also an EU national, or someone from a different country of origin. The European

Union does not, for example, propose to deter a Spanish executive of a bank from moving to, say, Brussels from Madrid,

because he needs to bring with him his eighty year old Moroccan mother. In this regard, it must be pointed out that the

2004 Directive, makes it explicitly clear that its legislative objective is to facilitate the exercise by Union citizens of the

right of freedom of movement; thus, as recital 5 explains, the right to reside in a particular member state is only accorded

to family members where it is connected to the exercise by a Union citizen of the right to move and reside within the

territory of the Union.

13. It must also be pointed out that in Regulation 2 of the 2006 Regulations and Article 2 of the 2004 Directive, the term

“family member” extends to a father or stepfather, only if it comes within the terms, “dependent direct relative of the

Union citizen in the ascending line”. The first named applicant is in E.’s ascending line, in that sense, but he is not a

dependent relation because, as counsel for the applicant described him in argument, it is he who is the long-term primary

breadwinner of this family.

14. The fundamental problem for the applicant, in the present case, is that E.’s situation has no Community law

dimension; it is purely national in its ramifications. It concerns a son who is an Irish national and a stepfather from outside

the Union. E. was born in Ireland and has never been elsewhere within the EU. Both he and his mother desire above all,

apparently, to remain here. No Treaty right of free movement is therefore in issue. In reality, this is an attempt to exploit

the child’s EU status, in the hope of legitimising the presence of the first named applicant within the State.

15. Contrary to the submissions made, this construction of the law is not negated by the case law of the Court of Justice

relied upon, notably the judgments of the Court of 25th July, 2008, in Case C-127/08 Metock v. Minister for Justice, and

19th October 2004, in Case C-200/02 Zhu and Chen v. the Secretary of State for the Home Department. Both of these

cases involved actual exercise by the relevant parties of rights of free inter-state movement and residence, thus creating

the Community law dimension to the application of the rules.

16. The Metock case concerned a number of non-nationals of the Union, who had applied for asylum in Ireland and been

refused, but who had married EU nationals who were working and residing in Ireland. The principal finding of the judgment,

so far as concerns the application of the 2004 Directive to the Irish legislation, was that it was not competent for the

transposing measures to require that the non-national spouse who sought to accompany the EU citizen when taking up

residence in Ireland, must himself, or herself, have been lawfully resident in another Member State before arrival, in order

to benefit from the provisions of the Directive.

17. Regulation 3(2) of the 2006 Regulations, as originally adopted, had provided that they would not apply to, “A family

member, unless the family member is lawfully resident in another Member State” and is seeking either to enter the State in

the company of the Union citizen, or to join a Union citizen already lawfully present in the state. That EU residence

requirement for the family member was, as a result of that judgment, removed by S.I. 310/2008. In each of the four

cases considered in that judgment, however, the family member seeking residence in Ireland was the spouse of a Union

citizen resident in Ireland who was a national of a member state other than Ireland.

18. The Metock case is also authority for the proposition that residence by a family member, under the terms of the

Directive, is not affected by the timing of the Union citizen’s founding of the family concerned; in other words, by whether

the marriage takes place before or after the establishment of residence in the host Member State. It is not, however, in

the Court’s judgment, authority for the proposition that is now advanced in the present case, namely, that the Union

citizen concerned need not have established such a residence, but may have his or her sole residence in the Member

State of which he or she is a national. Paragraph 85 of the judgment in that case makes it clear:

“Article 3, paragraph 1 of Directive 2004/38 provides that the directive is to apply to all Union citizens who move to,

or reside in, a member state, other than that of which they are a national, and to their family members, as defined

in point 2 of Article 2 of the Directive, who accompany or join them.”

19. Nor can any support be gleaned from the judgment in the Zhu and Chen case, which concerned the earlier provisions

of Directives 73/148 and 90/362 and which were subsequently consolidated into the 2004 Directive. There again, the

circumstances did involve the necessary element of the exercise by a Union citizen of a right to move within the territory

of the Union, namely that of the child, Catherine, who had been born in Belfast and had acquired Irish nationality. Her

mother was a Chinese national who had entered the United Kingdom when pregnant, apparently with the express intention

of giving birth to the child in Ireland and with a view to gaining for herself an entitlement then to reside with the child in

the United Kingdom. The judgment affirmed that even though she was a minor, the child, as a Union citizen and Irish

national, was entitled to move and reside in another member state, namely the United Kingdom. The capacity to acquire

and exercise such Treaty rights is not dependent on attaining majority or any minimum age.

20. The judgment also held that the child’s mother was entitled to reside in the United Kingdom with her daughter, as her

primary carer but it is important to note the precise legal basis upon which that conclusion was reached by the Court of

Justice. Thus, at paragraph 43 the Court says:

“According to the case law of the Court, the status of a ‘dependent’ member of the family of a holder of a right of

residence is the result of a factual situation, characterised by the fact that material support for the family member

is provided by the holder of the right of residence. (See, to that effect in relation to Article 10 of Regulation

1612/68 Case 316/85 Lebon [1987] ECR 2811).

21. At para. 44 the Court then said:

“In circumstances such as those of the main proceedings, the position is exactly the opposite, in that the holder of

the right of residence is dependent on the national of a non-member country, who is her carer and wishes to

accompany her. In those circumstances, Mrs Chen cannot claim to be a dependent relative of Catherine in the

ascending line within the meaning of Directive 90/364, with a view to having the benefit of the right of residence in

the United Kingdom.”

22. In other words, Mrs Chen’s entitlement was not on the basis that she was a dependent relative for the purposes of

the directive, but on the basis that it was necessary for her to accompany the child as the child’s carer in order to enable

the child’s right under the Treaty to be exercised effectively. Thus, contrary to the argument now sought to be advanced

in the present case, it was the effective exercise of the interstate movement and residence right by the Union citizen

which constituted the basis for the interpretation of the relevant directives considered in that case.

23. It is that factor which is wholly absent in the present case because E. is resident in the Member State of which he is

a national. Moreover, the Zhu/Chen judgment also confirms that the first named applicant who, as mentioned, was

described as the family bread-winner in the long term, could not in any event be considered to be a dependent direct

relative in the ascending line in the sense of the definition of family member in Article 2.2 of the 2004 directive. Like Mrs

Chen, he cannot claim to be a dependent relative to his stepson.

24. It is argued that the application of the Regulations and Directive in this way constitutes an unlawful, discriminatory

treatment of the Union citizen. It is said, in effect, that E. has no rights under the Regulations because he is an Irish

national, while the child who is a national of any other Member State, in his situation, would be entitled to be joined by

his stepfather. Leaving aside the issue as to whether he could, in any event, be described as a dependent relative, this

analogy is false and the argument is unfounded.

25. It is well settled case law that the Community law principle of unlawful discriminatory treatment is to the effect that

discrimination is unlawful where, without objective justification, like situations are treated differently, or different

situations are treated as if they were the same. (Case 13/63 Italy v. Commission [1963] ECR 165). E. is in exactly the

same position in relation to the exercise of the directive rights as the national of any other Member State residing in his

own member state of nationality. His rights are less than those of a child of non-Irish nationality, but only if that child has

established residence in Ireland. That is not a like situation.

26. Finally, much emphasis has been placed in this application on the fact that it is an application for leave, and that, in

effect, simply because the arguments have been set out, leave ought to be granted by reference to the standard test

applicable under Order 84, as mentioned above.

27. The case proposed to be made is, however, in the Court’s judgment, clearly unfounded and the argument to be

advanced is manifestly wrong. Particularly in a case where the respondent has been heard, once that is clear to the

Court, it would be incompatible with the proper administration of justice, wasteful of the resources of the Court and

oppressive of the respondent to simply grant leave for the sole purpose of allowing a wrong argument to be debated at

greater length to no purpose. The application will therefore be refused.