In Bakare v Minister for Justice the Court of Appeal considered the applicability of the Zambrano case in situations where it is proposed to deport only one parent of an Irish citizen child. The applicant was a Nigerian citizen who arrived in the State in February 2002 when he applied for asylum on grounds of his ethnicity and his political views. That application was refused at first instance and on appeal. A deportation order was subsequently made by the Minister in respect the applicant in September 2003. The applicant then married his wife, and in March 2004 they had a child who was an Irish citizen. The applicant’s wife subsequently naturalised as an Irish citizen. Following the making of the deportation order in 2003 the applicant did not present to the immigration authorities and he was then classified as an evader. The applicant was arrested and ultimately deported to Nigeria in December 2009. He returned illegally to the State in March 2014. In June 2015 he applied for residency based on his parentage of an Irish citizen child and the decision of the Court of Justice in Case C-34/09 Ruiz Zambrano  E.C.R. I-1177. The Minister requested full details of the extent to which the applicant’s Irish citizen child was emotionally and legally dependent on him. The applicant responded with a short hand written letter in July 2015 in which he claimed that he played a “major role” in the lives of his two children by taking them to the school and to the doctor as well as to hurling training. He also claimed that he had remained in regular contact with his family after his deportation. His wife wrote a similar letter in which she maintained that he regularly helped them with their school homework and that he had been a good father to the children.
The Minister refused the applicant’s application in January 2016 on the basis that the Zambrano principle was not applicable in the applicant’s case, because there was no evidence that his Irish citizen child would be forced to leave the State or the territory of the European Union in circumstances where the child’s mother was an Irish citizen with the right to reside and move freely within the territory of the member states of the European Union. The applicant applied to the High Court for leave to seek judicial review of this decision in March 2016. The High Court refused the application for leave, and the applicant appealed to the Court of Appeal.
The Court of Appeal upheld the decision of the High Court and dismissed the appeal. Hogan J. gave the judgment of the Court of Appeal, and confirmed that the core of the test in Zambrano, as clarified by subsequent decisions of the CJEU in Case C-256/11 Dereci  E.C.R. I-11315, Case C-356/11 and Case C-357/11 O and S  E.C.R. I-000 and Case C-156/13 Alfredo Rendón Marin  E.C.R. I-000 is whether the denial of residency or similar rights to one or both third country nationals who are the parents of EU citizen children is likely to bring about a situation where those children are in practice compelled to leave the territory of the Union. Applying that test in the Bakare case, Hogan J. found that there was no appreciable risk that the children would be obliged to leave the territory of the State by reason of the decision of the Minister to refuse to grant residency to the applicant, and confirmed that the case therefore did not come within the scope of Zambrano. Hogan J. accepted that there was no doubt that, viewed from the perspective of the family and, indeed, the best interests of the children, it would be desirable that the applicant would continue to reside with his wife and children. However, Hogan J. noted that the Court of Justice made clear in both Dereci (para.68) and O and S (para. 68), these considerations in themselves were not decisive; these cases made it clear that it was necessary to go further in order to demonstrate that the practical effect of the denial of residency would be that the children would be obliged to leave the territory of the Union. The available evidence in the present case suggested that there was no such risk of any appreciable kind, given that the children’s mother was a naturalised Irish citizen and that she had not moved from Ireland to Nigeria following her husband’s deportation in 2009. Accordingly, the Court of Appeal dismissed the appeal.