OA and Another v Minister for Justice and Equality

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Respondent/Defendant:Minister for Justice and Equality
Court/s:High Court
Citation/s:[2014] IEHC 384
Nature of Proceedings:Judicial Review
Judgment Date/s:30 Jul 2014
Judge:Barr J.
Category:Residence
Keywords:Free Movement, Minor, Non-EU National, Residence
Country of Origin:Kenya
URL:https://www.courts.ie/acc/alfresco/162b6ca0-95c8-4dff-a865-2bf56323fdff/2014_IEHC_384_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts:
The first named applicant was a Kenyan national who arrived in Ireland with her infant daughter and applied unsuccessfully for asylum. Shortly after her arrival in Ireland, she met a Nigerian-born German national, and they began a relationship. She became pregnant with his child, the second named applicant, who was born in 2010 and was a German national by descent. Her relationship with the German national ended. She then purported to apply to the Minister for Justice for a stamp 4 permission, which would entitle her to work in the State, pursuant to the EC (Free Movement of Persons)(No. 2) Regulations 2006. The Minister replied, requesting the first named applicant to provide further information and documentation. In the course of that letter, the Minister stated “please note that in the event that your application under ‘Chen’ is successful, this will provide for a right of residence Stamp 3 only”. She challenged this by way of judicial review, contending that it represented an unlawful refusal of her application.

The court dealt with a number of preliminary issues. First, it had to decide whether or not the letter constituted a refusal of her application for stamp 4. It held that it did and, in the ordinary course of things, was amenable to judicial review. It then turned to consider whether she was entitled to seek judicial review or ought to have proceeded by way of a review application under the Regulations of 2006. It noted that reg. 21(1) thereof provided that a person “to whom these Regulations apply” could seek a review of any decision concerning his or her entitlement to be allowed to enter or reside in the State. It held, however, that she was not a person to whom the Regulations applied, being neither a permitted or qualifying family member of a Union citizen as defined therein. The court therefore held that judicial review was the only remedy available to her with respect to her grievance with the decision.  Finally, it rejected the contention of the Minister that certain inconsistencies in her affidavits with regard to when her relationship broke up and the extent of her qualifications to engage in employment as a nurse, entitled it to dismiss her proceedings for want of candour.

The court then considered the substance of the applicant’s complaints and, having done so, decided to quash the Minister’s decision.

Reasoning:
It noted that the first named applicant was the mother and primary carer of the second named applicant, a German national.

The applicants submitted that second named applicant was exercising her right to freedom of movement by electing to reside in Ireland. The first named applicant claimed that she had a derived right to remain in Ireland with the second named applicant, relying on the decision of the ECJ in Zhu and Chen v. Secretary of State for the Home Department [2004] ECR 1-9925. On the basis of that case, the second named applicant would be entitled to reside in Ireland if she could satisfy the requirements of Article 7(1)(b) of Directive 2004/38/EC, i.e. had sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State.

The Minister contended that if her application under Chen was successful, the first named applicant would have a right to reside only, i.e. a stamp 3 residency. The applicants submitted that the Minister was mistaken and that Chen residence, by implication, encompassed a right to work, i.e. a stamp 4 residency. They further argued that in determining whether or not the second named applicant met the sufficient resources requirement, the Minister had to take into account the potential future resources of her primary carer, the first named applicant, such as a job offer. The first named applicant submitted that if she was permitted to work, she would be able to meet the sufficient resources requirement and prevent either herself or her daughter becoming a burden on the Irish social welfare system. If she was not permitted to work, then she would not be in a position to satisfy the sufficient resources condition and she and her daughter would not, consequently, qualify for residence in the State.

Insofar as the decision of the ECJ in Chen was concerned, the applicants conceded that it did not explicitly hold that Mrs. Chen’s right of residence in the United Kingdom included a right to work, since that question had not been referred to it. Nevertheless, they submitted that having regard to the nature of the residence permit sought by Mrs. Chen, as well as the fact that her employment was the means by which her Irish daughter had sufficient resources to reside in the United Kingdom, it was implicit that the right declared in that judgment did not contemplate any restriction on the right of residence of the primary parental carer which would exclude an entitlement to work. The Minister, on the other hand, pointed out that Mrs. Chen did not apply for a work permit, or a right to work in the United Kingdom: she applied for residency simpliciter.

The applicants also relied upon the decision of the CJEU in C-86/12 Alokpa. There, the applicant, Mrs. Alokpa, a citizen of Togo, applied for a right to remain in Luxembourg on behalf of herself and her two French national children, who had been born in Luxembourg. The Luxembourg authorities refused her application. She appealed that decision to the administrative court which stayed the proceedings and submitted a preliminary reference to the CJEU, which held that the citizenship provisions of the TFEU had to be interpreted as meaning that they precluded a Member State from refusing to allow a third-country national to reside in its territory, where that third-country national had sole responsibility for her minor children who were citizens of the European Union, and who had resided with her in that Member State since their birth, without possessing the nationality of that Member State and having made use of their right to freedom of movement.

They relied, in particular, on the opinion of the Advocate General there that the condition of “sufficient resources” was capable of being satisfied by the definite prospect of future resources which would stem from a job offer to which a Union citizen or a member of his family responded successfully in another Member State. In his view, a different interpretation would deprive the freedom of movement enjoyed by citizens of the Union of its practical effect, whereas the objective of Directive 2004/38/EC was to strengthen the right to freedom of movement.

They contended that it followed axiomatically that the residency of the third country national had to include the right to work, and that that had been implicitly confirmed by the CJEU, which held that there was no requirement whatsoever as to the origin of a minor Union citizen’s resources, since they could be provided by the EU minor’s parents. In their view, the resources did not have to be in existence at the time of the application for a stamp 4. If the first named applicant would be in a position to provide those resources through future employment, then she was entitled to a right of residence and a right to work to provide those resources.

The court agreed with the submissions of the applicants. It noted, first, that in Alokpa the CJEU had reiterated its approach in Chen that “the expression ‘have’ sufficient resources… must be interpreted as meaning that it suffices that such resources are available to the Union citizens, and that that provision lays down no requirement whatsoever as to their origin.” The court held that at no point did the CJEU attempt to limit that broad interpretation by, for example, holding that the resources had to be extant at the time the application was made. It pointed out that the Chen decision expressly stated that a broad interpretation was to be preferred when interpreting provisions relating to the free movement of persons.

Secondly, it observed that the stated objective of Article 7(1)(b) of Directive 2004/38/EC was to prevent EU migrants from becoming a burden on the social assistance system of the host Member State during their period of residence. If an applicant could satisfy the sufficient resources requirement with income that would be derived from employment, then he or she could not be said to be a burden on the host Member State. It therefore held that the imposition of a condition as to the origin of the resources, such as that as posited by the Minister, that they be extant at the time of the application, was not necessary for the attainment of the objective pursued, namely the protection of the public finances of the Member States. In its view, the Minister’s interpretation would constitute a disproportionate interference with the exercise of the fundamental right of freedom of movement and would be inconsistent with the CJEU’s preference for a broad interpretation of the freedom of movement provisions, as clearly expressed in Chen.

It therefore held that the right to work in a host Member State was implicit in the right of residence stemming from the Chen case. Accordingly, it quashed the Minister’s decision refusing the first named applicant’s application for stamp 4 permission to work in the State. It also made a declaration that: (i) the first named applicant was entitled to apply for stamp 4 residency pursuant to EU law; and (ii) when assessing whether the applicant has “sufficient resources”, the Minister had to take into account the definite prospect of future resources, such as those arising from a job offer which the applicant had accepted.

Decision:
The court therefore quashed the Minister’s decision to refuse the applicant’s application for permission to reside in the State under stamp 4 conditions.

Principles:

In assessing whether the primary carer of a Union citizen has sufficient resources for the purpose of establishing whether or not he or she obtains a derivative right of residence pursuant to the decision of the ECJ /CJEU in C-200/02 Chen,  the resources do not have to be extant at the time of the primary carer’s application for residence and, in particular, they can be held to exist if the primary carer can obtain them by taking up employment. It therefore follows that a grant of permission pursuant to Chen must be on the basis of stamp 4 conditions, i.e. include the right to work.

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