Key facts of the case:
The first three applicants were Irish citizen children and therefore citizens of the EU. The fourth and fifth named applicants were their mother and father. The Minister for Justice made a deportation order in respect of the fifth applicant, the children’s father, requiring him to leave Ireland and thereafter remain outside of Ireland. The family requested the Minister to revoke the deportation order, arguing that it would breach their family rights as protected under both Irish law and EU law pursuant to the Charter. The Minister refused to revoke the deportation order, and the family instituted judicial review proceedings seeking to challenge the deportation order on a number of grounds, including that the deportation was contrary to the Charter.
After referring to the text of Articles 7, 21, 24, 45, 51 and 52 of the Charter at paras. 45-47, the judge stated:
48. The grounds advanced in respect of alleged breaches of the rights of the European Union citizen children are in the courts view not stateable. As already stated there never was any question of the children in this case being forced to leave Ireland or the European Union. The mother has applied for naturalisation and has been granted residency until 2016. The factual basis for the application, therefore, does not exist.
49. The applicants contend that they have an arguable ground that the application of the Zambrano and Dereci decisions and the further decisions in McCarthy v. Secretary of State for the Home Department (Case – 434/09 – 5th May, 2011) and O., S & L v. Maahanmuuttoviraso (Cases – C356/11 and C257/11 – 6th December, 2012) support the proposition that the Minister erred in law in finding that the applicants legal rights were not engaged and in declining to assess the case under the provisions of the Charter of Fundamental Rights of the European Union. Further, it was submitted that the respondent was somehow in breach of the applicants’ rights as a family under the provisions of the Article 7 of the Charter of Fundamental Rights.
50. In this case the European Union citizen children have never made use of their right of freedom of movement and have always lived in Ireland. In O.S. & L the European Courts of Justice reaffirmed the principles set out in Zambrano, McCarthy & Dereci, that European Union children, who have not made use of the right of freedom of movement, cannot for that reason alone “be assimilated to a purely internal situation, that is, a situation which has no factor linking it with any of the situations governed by European Union law”. The court stated that it has been held on a number of occasions that Article 20 TFEU precludes national measures, including refusals to grant rights of residence to family members of a Union citizen, which have the effect of denying Union citizens the genuine enjoyment of the substance of the rights conferred by their status. Further, the court has held that the refusal to grant a right of residence to a third country national in the member state of residence of his European Union children, if it had the consequence that those children would have to leave the territory of the Union in order to accompany their parents, would mean that the children would in fact be unable to exercise the substance of the rights conferred by their status. In addition, it was for a referring court to establish whether the refusal of the applications for residence submitted on a basis of family reunification in such circumstances concerned a denial of the genuine enjoyment of the substance of the rights conferred by their status. When making that assessment, the court also found that the fact that the mothers of European Union citizens hold permanent residence in a member state so that in law there is no obligation for them or their European Union citizen children who are dependent upon them to leave the territory of the member state, must be taken into account. In that regard also, the question of the custody of the children, in this case joint custody between the parents, must be considered and also whether any decision made would have the effect of harming a relationship between the children and their biological fathers. The national court must examine all of the circumstances of the case in order to determine whether in fact the decisions in such cases are liable to undermine the effectiveness of the Union citizenship enjoyed by the children concerned.
51. The fact that the third country national for whom a right of residence is sought is not a person on whom the children are legally, financially or emotionally dependent must be taken into consideration when examining the question whether the children would be unable to exercise the substance of the rights conferred. The court also held that a finding that the refusal to grant a right of residence to a third party national parent of a European Union child would result in the children being forced to leave the European Union, would be without prejudice to the question of whether on the basis of other criteria the right to reside could not be refused, for example, by reference to the right to the protection of family life.
52. Apart from the fact that the question of whether the children would be forced to leave the jurisdiction has already been considered on a number of occasions by the Minister and that nothing new has been adduced in relation to that matter, the court is satisfied having reviewed the papers and the various decisions made in this case by a number of officials, that the principles of European law set out above were properly considered in the challenged decision and that the applicants have no stateable case upon which the refusal to revoke the deportation order could be challenged.
53. A further submission was made that the second revocation decision failed to respect the applicants’ private and family life under Article 7 of the Charter of Fundamental Rights of the European Union which provides that:- “Everyone has the right to respect for his or her private and family life, home and communications.” It was also submitted that the best interests of the child were a primary consideration which should have been taken into account in the making of the decision pursuant to Article 24 of the Charter, and that every child had the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents unless that is contrary to his or her interests.
54. In interpreting Article 7 and Article 24 of the Charter, Article 52(3) provides that insofar as the Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be “the same as those laid down by the said Convention”. This does not prevent European Union law providing more extensive protection for children but it is a tool of interpretation. There is an extensive body of jurisprudence in relation to the application of Article 8 of the European Convention on Human Rights in respect of deportation orders and applications to revoke them under s. 3 of the Immigration Act 1999. The jurisprudence of the European Court of Human Rights is, as a matter of course, applied in such cases (as indeed it was in this case) to considerations of the applicants’ rights to private and family life under Article 8. This assessment was carried out prior to the making of the deportation order and in the course of the consideration of both applications to revoke the deportation order, as is evident from a reading of the examination of file and the considerations of the file carried out by the officials in this case. That process has never been the subject of challenge by way of leave to apply for judicial review or otherwise by the applicants. Though the applicants contend that a different test should have been applied in the application of Article 7 of the Charter in respect of the private and family lives of the applicants on the application to revoke, the applicants have not advanced to the court any test different to that which was applied in respect of Article 8 of the European Convention throughout this process. The court is satisfied having regard to Article 52(3) of the Charter that the meaning and scope of Article 7 is the same as the meaning and scope of Article 8. The court is not satisfied that there is any stateable ground upon which it can be argued that Article 7 of the Charter of Fundamental Rights was in any respect misconstrued or breached. The best interests of the child were considered both in relation to the children’s constitutional rights and Convention rights in accordance with the principles laid down in Boultif and Uner.
55. There is nothing to suggest that the best interests of the children in this case were not a primary consideration in the decision made, nor is there any evidence to suggest that the state has denied direct contact or a personal relationship between the European Union children and their father. In that regard the maintenance of personal relationships and contact is not always dependent on the presence of the parent within the home or the state.
56. I am also satisfied that, having regard to the similarities of the matters to be considered under Articles 7 and 24 of the Charter and the TFEU respectively and the matters to be considered, both under the Constitution and the European Convention on Human Rights, there is no stateable ground upon which to seek leave to apply for judicial review in respect of ground 5(4).