Ireland / High Court / [2014] IEHC 83 K.I. (a minor suing by his mother and next friend M.I.), A.A.O. (a minor suing by her mother and next friend M.I.), A.O. (a minor suing by his mother and next friend M.I.), M.I. and R.O. v The Minister for Justice and Equality, Attorney General and Ireland and the Human Rights Commission

Key facts of the case:

R.O. is a Nigerian national and a failed asylum seeker who is also the partner of the fourth named applicant, M.I.. M.I. is the mother of an Irish citizen from a previous relationship (K.I.). R.O. is not the biological father of K.I. but R.O. and M.I. are the parents of A.A.O. and A.O. who are not Irish citizens but were born in Ireland. The case was a judicial review of decisions made by the Minister in relation to R.O.’s asylum claim. R.O. claimed that as a result of the Court of Justice of European Union’s judgment in the case of Ruiz Zambrano v Office National de l’Emploi (Case C-34/09 (08.03.2011), [2011] ECR 1-1449), Ireland was precluded from refusing R.O. a right of residence in Ireland and from refusing to grant him a work permit, insofar as that decision deprives his children of the genuine enjoyment of the substance of their rights as EU citizens. R.O. also alleged that his deportation was in breach of Article 8 of the European Convention of Human Rights for its failure to respect his family life.

Paragraphs referring to EU Charter (original language): 

 

19. These grounds refer to child related issues. They are:- “12. The respondent failed to have regard to the fundamental principle that the minor applicants’ best interests be a primary concern, in accordance with the European Convention on Human Rights, the Charter of Fundamental Rights and Freedoms, and UN Convention on the Rights of the Child and the Constitution. 13. In concluding that the deportation of the fifth named applicant was proportionate on the grounds that the family unit could relocate to Nigeria, the first named respondent acted in breach of Article 8 of the European Convention on Human Rights and/or Article 7 of the Charter of Fundamental Rights and Freedoms, in conjunction with Article 20 of TFEU. In this regard, having regard to the fact that the first named applicant is an Irish national, the interference with the family rights of the applicants can only be justified on the basis that the conduct of the fifth named applicant gives rise to considerations of such weight as to justify his separation and not on the basis that the family can relocate to Nigeria.”

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21. Article 7 of the Charter of Fundamental Rights of the European Union states:- “Everyone has the right to respect for his or her private and family life, home and communications.” Article 24 of the Charter provides in respect of the rights of the child that:- “(2) In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interest must be a primary consideration. (3) Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with his or her parents, unless that is contrary to his or her interests. Article 51 of the Charter importantly provides that the provisions of the Charter are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and “to the member states only when they are implementing Union law”. Article 52(3) provides that:- “Insofar as this 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 provision shall not prevent Union law providing more extensive protection.”

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23. It was claimed, however, that the Minister was required to examine whether R.O.’s deportation violated K.I.’s right to family life under Article 7 of the Charter of Fundamental Rights. I am not satisfied that the provisions of Article 7 apply to this case. Article 51 provides that the provisions of the Charter are addressed to the institutions of the European Union and to member states “when they are implementing Union law”. The deportation of R.O. is pursuant to domestic legislation and is not in the course of the implementation of European Union law. The exercise of K.I.’s rights as a European Union citizen is not affected by R.O.’s deportation in any respect.

Language: 
English
Deciding body (original language): 
High Court
Language: 
English