The first and second Applicants were a wife and husband respectively, the third and fourth Applicants their children, all Irish citizens. The fifth Applicant, L.W., was the mother of the first Applicant and the grandmother of the third and fourth Applicants. She was a Chinese citizen and a widow. She travelled to and from the State a number of times to help with the grandchildren. In June 2008 she entered the state on a C [short term visitor or tourist] visa. In July 2008 she applied for an extension of her visa, but this was refused by the Minister. Requests for review were all refused by the Minister. Judicial review proceedings were initiated but were settled by the parties. As part of the settlement L.W. was granted a limited Stamp 3 [a permission to remain in the state for a short period without permission to work]. As the expiration of the Stamp 3 approached in April 2009, L.W. applied to the Minister for a Stamp 4 [a permission valid for a longer period than a Stamp 3 and granting permission to work] in line with the permission to remain granted to family members of Union citizens exercising their EU Treaty rights in Ireland. This was sought not for the purposes of working but because Stamp 4 permission is of substantially longer duration than Stamp 3. This application was refused, and L.W. was warned to make arrangements to leave the State. She was warned that unless she produced evidence that she had left, she would be issued with a proposal to deport which would adversely affect any future visa application. L.W. duly returned to China.
The Applicants sought leave for judicial review of the Minister’s decision to refuse L.W. a Stamp 4 permission to reside in Ireland, claiming inter alia that the Minister had unlawfully fettered his discretion with respect to the grant of residence permits and that he was discriminating against the family by treating them less favourably than citizens of other EU member states who would be entitled to have their third country dependents join them in Ireland under the Citizenship Directive and the Irish transposing Regulations.
The High Court found that there was no reverse discrimination against the family because as Irish citizens they were not in the same position as Union citizens exercising EU Treaty rights. In any event, the EU has always recognised the principle of reverse discrimination. Ireland is entitled to treat its own citizens less favourably than other Union citizens who are in a position to rely on specific EU Treaty rights which Irish citizens are not in a position to avail of. The Court further held that dependency requires some level of handicap, incapacitation or other disabling factor which makes a person dependent not simply financially but socially, and that there was insufficient evidence that L.W. was dependent on her Irish family.
This approach can be contrasted with the Opinion of the Advocate General in Ruiz Zambrano v. Office National de l’Emploi.
