Gilani v Minister for Justice and Equality

adminLeave a Comment

Respondent/Defendant:Minister for Justice and Equality
Court/s:High Court
Citation/s:[2012] IEHC 193
Nature of Proceedings:Judicial Review
Judgment Date/s:14 May 2012
Judge:Cooke J
Category:EU Treaty Rights
Keywords:EU Treaty Rights, Overstay(er)
URL:https://www.courts.ie/acc/alfresco/557e7b66-3cfa-4441-b9d1-eaf2eee056e0/2012_IEHC_193_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts

The applicant was a national of Pakistan and had entered the State on a visitor’s visa, overstayed the period of validity of the visa and remained illegally in the State. He had been in a relationship with an Estonian national since 1999 and they had a daughter born in 2007 who was an Irish citizen and therefore an EU citizen. She was the second named applicant in the proceedings. The relationship ended and the child remained with her mother in Ireland and the applicant saw her a number of times per week and contributed unspecified financial support for her. He subsequently married an Irish citizen in 2009 and was given permission to reside in the State on that basis and issued with a ‘Stamp 4’ endorsement valid to January 2012. The couple ceased living together in 2011 but had not divorced. In June 2011 the applicant submitted an application for permission to reside and work in the State on the basis of his parentage of his Irish daughter pursuant to inter alia Article 20 TFEU.

The Minister responded stating that it did not consider that the decision in Ruiz Zambrano applied to the applicant and that, in any event, he already held a right of residence in Ireland which allowed him to enter employment or a profession or set up a business without the need to seek further permission from the Minister. The Minister stated that the State’s obligation under the Zambrano principles were met in his case, and that those principles offered him nothing extra from an immigration standpoint. Despite the Minister’s response, the applicant again requested the Minister to make a decision on his permission to reside based on Article 20 and Zambrano prior to the expiry in January 2012 of the residence permission he held based on his marriage to an Irish citizen.

The applicant sought a mandatory order directing the Minister to determine within a reasonable period of time his application for permission to reside in the State on the basis of his parentage of an Irish citizen child, pursuant to Article 20 of the Treaty on the Functioning of the European Union (TFEU), Article 24 of the EU Charter of Fundamental Rights and the decision of the European Court of Justice in Ruiz Zambrano (Case C-34/09).

Reasoning

The Court held, first, that it could only make a mandatory order to compel a public body to perform a public duty where it was under an obligation to do so and has either wrongfully refused to do so or delayed so egregiously that the delay is tantamount to a refusal. In this case, the Minister had made a decision on the applicant’s application. He refused it on the basis that the applicant already had permission to reside in Ireland and had taken up employment which he was entitled to do. Therefore the Minister’s public duty had been discharged.

Secondly, the applicant’s assertion that he was entitled to reside in the State pursuant to the decision in Zambrano was misconceived and based on a misreading of that decision. The decision of the European Court of Justice conferred no right or entitlement on the applicant as a non-EU national father. The rights and protection conferred by Article 20 TFEU apply to the EU citizen only. It is only where the removal of the third country national or the refusal to grant the third country national parent a work permit will necessarily lead to the departure of the EU citizen child from the territory of the Union that Article 20 TFEU can be invoked by the EU citizen to require the relevant Member State to permit the parent to remain and to be employed.

Decision

Cooke J. held that it was clear that the entitlement of a minor EU citizen child to assert an entitlement to compel the grant of a right of residence and a work permit to a non-Irish national parent is fundamentally dependent upon it being shown that it is necessary to do so in order to avoid the Union citizen child having to depart the territory of the Union upon the removal of the parent. There was no evidence that this case came within that criterion. There was no suggestion that the child, who lived with her mother in the State, was at risk of having to leave the country. She was only ‘dependent’ on her father in the sense that she saw him a number of times per week and that he contributed a sum towards her. This did not constitute evidence of the type or level of dependence envisaged in cases such as Ruiz Zambrano and Dereci, namely one which compels the EU citizen to leave the territory of the EU if the parent is removed.

Further, the applicant had not been refused residence or permission to continue in employment.  Although the permission was said to have expired in January 2012, there was no evidence before the Court that it would not be renewed so long as the applicant was married to an Irish citizen, and there was no evidence that there had been any proposal to deport the applicant. If the permission to reside was not renewed and a proposal to deport the applicant were to be made, his entitlement to avoid deportation would depend not on the principles of the Ruiz Zambrano case but on the application of the principles protecting family life.

The Court refused the application.

Principles:

A court could only make a mandatory order to compel a public body to perform a public duty where it was under an obligation to do so and has either wrongfully refused to do so or delayed so egregiously that the delay is tantamount to a refusal.

The decision of the European Court of Justice conferred no right or entitlement on the applicant as a non-EU national father. The rights and protection conferred by Article 20 TFEU apply to the EU citizen only. It is only where the removal of the third country national or the refusal to grant the third country national parent a work permit will necessarily lead to the departure of the EU citizen child from the territory of the Union that Article 20 TFEU can be invoked by the EU citizen to require the relevant Member State to permit the parent to remain and to be employed.

If permission for a non-EU national parent to reside in the State was not renewed and a proposal to deport the person were to be made, that person’s entitlement to avoid deportation would depend not on the principles of Ruiz Zambrano but on the application of the principles protecting family life.

Go Back

Leave a Reply

Your email address will not be published. Required fields are marked *