MY and Others v Minister for Justice and Others (No. 2)


Respondent/Defendant:Minister for Justice, Equality and Law Reform, Attorney General and Ireland
Court/s:High Court
Citation/s:[2015] IEHC 7
Nature of Proceedings:Judicial Review
Judgment Date/s:15 Jan 2015
Judge:MacEochaidh J.
Category:EU Treaty Rights, Refugee Law
Keywords:Citizenship, Employment, EU Treaty Rights, Minor, Refugee
Country of Origin:Pakistan
Geographic Focus:Ireland

The first and second applicants were a married couple from Pakistan residing in Ireland with their three children. They sought inter alia declarations that the first and second applicants, twins born to them in Ireland in 2005, had lawfully resided in the State since the birth of their first child, the third applicant, in 2002, as to render their residence reckonable for the purpose of obtaining automatic Irish citizenship.

The applicants argued that, as the third applicant was an Irish / EU citizen, the first and second applicants’ rights of residence derived from that citizenship, and that, even if that was not the case, such rights would exist independently by operation of Article 20 of the Treaty on the Functioning of the European Union (TFEU). They stated that the Minister was obliged retrospectively to acknowledge such rights and to consider the periods of residency from the birth of the child in 2002 to be “reckonable residence” within the meaning of the Irish Nationality and Citizenship Act 1956, contending that such retrospective recognition was what the Court of Justice of the European Union (CJEU) required in C-34/09 Zambrano. The respondents submitted that the right identified in Zambrano was a qualified one and did not entitle the applicants to disregard the necessity of obtaining permission to remain. Rather, when read alongside subsequent judgments of the CJEU, it merely set out the circumstances in which third country national parents of Union citizens might be granted permission to reside in the State. They contended that the right of the Union citizen child did not arise automatically at birth, but was dependent upon the circumstances of the family and on an assessment of whether it would be denied the genuine enjoyment of the substance of their rights as a Union citizen if its parent(s) was not permitted to remain and work in the Member State.

The court refused the reliefs sought.

The High Court rejected the applicants’ argument that Zambrano was authority for the proposition that they were lawfully present in the State from the date of birth of the Irish citizen child in 2002 and that, on account of such birth, parents unlawfully present in the State overcome that illegality and automatically enjoy such rights. It held that no provision of EU law exempted third country nationals from complying with the laws of Member States as to residence and employment. The State’s regime requiring non-EU persons to have permission to be in the State was not affected by EU law, save that such permission could not be withheld if the applicants were parents/carers of dependent EU citizens who, upon failed applications for residence, would be obliged to leave the territory of the Union.

The court noted that the CJEU, rather than conferring automatic rights of residence, stated that no exemption from work permit rules was automatically created by EU law, but that there were circumstances where such effect might be found. It was left to a national court to decide whether the refusal of an application would have the effect of depriving an EU citizen child of his/her right to remain in the EU.

Similarly, there might be circumstances in which Ireland was obliged retrospectively to acknowledge lawful residence of parents, or retrospectively confer permission to be in the State from the date of birth of the citizen child. However, no such facts or argument were advanced in the instant case. The court did not consider that the child’s EU citizenship had been impaired by the historic unlawful presence of the parents in the period from the birth of the child until the date they were granted permission to be in the State in 2005.

The court therefore refused the reliefs sought by the applicants.


The CJEU’s decision in Zambrano and subsequent related cases is to be interpreted as meaning that non-nationals who are unlawfully present in Ireland do not acquire lawful status from the birth of a child who happens to be an Irish/EU citizen.

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