Wang (a minor) v Minister for Justice and Law Reform

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Respondent/Defendant:Minister for Justice and Law Reform
Court/s:High Court
Citation/s:[2012] IEHC 311
Nature of Proceedings:Judicial Review
Judgment Date/s:23 Jul 2013
Judge:Cooke J
Category:EU Treaty Rights, Residence
Keywords:Adult, Child, Dependant, EU Treaty Rights, Family Formation, Family Member, Freedom of Movement (Right to), Member State (Remain in the), Minor, Non-EU National, Non-national, Residence, Residence Permit, Union Citizen
Country of Origin:China / Hungary
URL:https://www.courts.ie/acc/alfresco/86f5c09d-0e67-49c9-a8bd-7b4b05b39981/2012_IEHC_311_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts

The second applicant was a Chinese national who arrived in the State on a student visa in 2004. She met a Hungarian national in 2005 and they married in 2006. She was subsequently granted permission to remain in the State for a five-year period under the European Communities (Free Movement of Persons) (No. 2) Regulations 2006 as the  wife of an EU national. The first applicant was born to that couple in 2009 and was a Hungarian national. The marriage ended and the second applicant’s husband returned to Hungary in 2010. He had no relationship with his daughter since then and made no contribution to her care or upbringing. The third applicant was also a Chinese national, who arrived in the State in 2002 on a student visa. His permission was renewed from time to time and was valid up to August 2012. The second applicant and third applicants described him as her long term partner and they described themselves as being in a long term committed relationship. The second applicant was then pregnant with the third applicant’s child.

The applicant applied to the Minister for permission to reside in the State under the 2006 Regulations. Her solicitor also requested that the Minister consider the position of the three applicants with regard to EU law, in particular Zhu and Chen v Secretary of State for the Home Department (Case C-200/02) and Ruiz Zambrano (Case C34/09). It was asserted that the position of the minor applicant’s mother was substantially the same as that of Mrs. Chen and she was entitled to reside with her daughter in Ireland as her daughter’s primary carer. It was also asserted that the third named applicant was the minor applicant’s stepfather and they constituted a family unit and he was therefore entitled to reside in the State with his stepdaughter and partner.

The Minister replied stating that in view of the fact that the applicant’s husband no longer lived in the State it appeared the grounds upon which permission to reside had been granted in 2007 no longer applied and that they proposed to revoke it as she was no longer a qualifying or permitted family member within Regulation 2(1) of the 2006 Regulations. The Minister proposed to examine her and the third applicant’s their case under the Chen principles. The solicitor wrote again requesting consideration under the principles in the Zambrano case.

The Minister determined that the Zambrano judgment did not apply to their case, and referred to the later Dereci case (Case C-256/11). The Minister also determined the claim under the 2006 Regulations and decided that the adult applicant could not claim dependency upon the child and that the minor child could not constitute the basis of a household for the purposes of the Regulation and therefore Regulation 2(1) did not apply in that respect. In relation to the Chen principles the Minister determined that while it was possible for them to come within the parameters of Chen, however the Minister considered that they were unable to comply with the other requirements to be self-sufficient and have private medical insurance. The third applicant who appeared to support the other two applicants, did not have a legal obligation to do so either now or in the future, as he had no legal relationship to the minor and was not married to the mother of the minor applicant. The Minister was not satisfied that the mother could be considered self-sufficient in her own right.

Reasoning

The Court held that the third applicant was neither the spouse of the second applicant nor the father of the first applicant and he was not a permitted family member within Regulation 2(1). Apart from whether he could be a “dependent” of the child, he was never the dependent or member of the household of the EU citizen in her country of origin, habitual residence or previous residence, as his country of origin or previous residence was China. The Court also held that the Chen principles also could not benefit the third applicant as he was not the child’s parent and the Chen principles could only apply as between the child and her mother exclusively.

The Court held that the mother and daughter’s position was different in this respect to the third applicant, as up to the departure of her Hungarian husband the second applicant was entitled to reside as a qualifying family member, but after this entitlement ended she did not meet the criteria to be a permitted family member. Cooke J. held that it was not arguable that the mother could claim to be a dependent of the EU citizen child and given its ordinary meaning an adult could not be the dependent of a child. The Court held however, that it was arguable that the mother might be considered a member of the household of the minor EU citizen notwithstanding that she was only three years old and the term household was open to the interpretation that if one individual is an EU citizen all members of the group could be regarded as equal members of the household.

The Court further held that the second aspect of the refusal related to whether the circumstances of the mother and child fell within the Chen principles and whether the decision that the mother was not self-sufficient was based on the view that their means were provided for by the third named applicant. Cooke J. held that it was not clear what test of self-sufficiency was applied by the Minister in reaching the conclusion that the means test condition was not satisfied if the support of the third applicant is excluded. It was arguable that the Minister erred in fact and reached an unreasonable and disproportionate conclusion in rejecting the application on the basis that the Chen conditions were not met.

Decision

The Court held that the third applicant was not a permitted family member within Regulation 2(1). Apart from whether he could be a “dependent” of the child, he was never the dependent or member of the household of the EU citizen in her country of origin, habitual residence or previous residence, as his country of origin or previous residence was China. The Chen principles also could not benefit him as he was not the child’s parent.

The Court held that up to the departure of her Hungarian husband the second applicant was entitled to reside as a qualifying family member, but after this entitlement ended she did not meet the criteria to be a permitted family member. It was not arguable that the mother could claim to be a dependent of the EU citizen child and an adult could not be the dependent of a child. However, it was arguable that the mother might be considered a member of the household of the minor EU citizen and the term household was open to the interpretation that if one individual is an EU citizen all members of the group could be regarded as equal members of the household.

As for the application of the Chen principles to the mother and child, and whether the mother was self-sufficient within those principles, it was not clear what test of self-sufficiency was applied by the Minister in reaching the conclusion that the means test condition was not satisfied if the support of the third applicant was excluded. It was arguable that the Minister erred in fact and reached an unreasonable and disproportionate conclusion in rejecting the application on the basis that the Chen conditions were not met.

Principles:

It was not arguable that a parent could claim to be a dependent of a three year old EU citizen child and an adult could not be the dependent of a child. 

It was arguable that a parent might be considered a member of the household of a minor EU citizen and the term household was open to the interpretation that if one individual is an EU citizen all members of the group could be regarded as equal members of the household.

In applying the Chen principles and considering the question of self-sufficiency within those principles, it must be clear what test of self-sufficiency the Minister was applying. The Minister must reach a reasonable and proportionate conclusion in assessing an application as to whether the Chen conditions are met.

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