Article 7 - Respect for private and family life
Article 24 - The rights of the child
Key facts of the case:
The case concerned an application by a citizen of the Russian Federation for temporary residence in the State by virtue of his parentage of his son, the second named applicant, who was born in Ireland and is an Irish citizen.The applicants sought to quash the previous decision of the Minister for Justice and Equality, refusing the applicant temporary permission to reside in the State . The second applicant born in the State on 1 October 2003. The applicants’ original claim depended on Article 20 of the Treaty on the Functioning of the European Union (‘TFEU’) which precludes the Minister from refusing a residence permission to the third country national parent of a dependent European Union citizen child, where that refusal would deprive that child of the genuine enjoyment of the substance of any right attached to the status of European Union citizenship, rather than only of the right to remain in the territory of the Union. The applicant sought to quash the negative decision as a violation of the rights of the second applicant under Articles 1, 7, 24(2) and 24(3) of the Charter.
Key legal question raised by the Court:
The key question in this case was whether, through the decision of the Minister to refuse the application for residence, the State was implementing EU Law thus permitting the Charter to be invoked by the Applicants as provided by Article 51 of the Charter.
Outcome of the case:
The Court determined that the second applicant was not exercising any right of free movement under the citizenship Directive. The court also noted that the Zambrano Principle did not apply since there was no suggestion the second applicant would have to leave the EU if residency of the first applicant was not granted. The Court also noted that the applicants were not seeking to apply provisions of the Family Reunification Directive. Given these findings the Court concluded that there was no suggestion that the State was implementing EU law through the decision of the Minister. The Court highlighted that Article 51 of the CFREU makes plain that the provisions of the CFREU are addressed to the Member States – as opposed to the institutions, bodies, offices and agencies of the Union – ‘only when they are implementing Union law.’ The applicants therefore could not impugn the Minister’s decision, which represents an exercise of an autonomoussovereign power of the State. The court dismissed the appeal.
PARAGRAPH 7. Precisely the proposition for which the applicants now contend has already been considered and rejected by this court in the following passage from the careful and closely reasoned judgment of Faherty J in Doyle & Anor. v The Minister for Justice & Ors [2017] IEHC 374 (Unreported, High Court, 24th March, 2017):
’35. I turn now to the submission that the Zambrano principle of derivative rights for the non-EU parents of EU citizen children should not be confined to situations whereby the EU citizen child would be obliged to leave the territory of the EU if their non-EU parent is refused residency. The applicants rely on the provisions of the EU Charter of Fundamental Rights of the European Union (“the Charter”), in particular Article 24.3 thereof. It provides:
‘Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with his/her parents, unless that is contrary to his/her interests.
PARAGRAPH 30. All of this presupposes that the Charter applies in a case of this kind. The key provision in the Charter is, of course, Article 51(1) which provides that it applies only to Member States when they are ‘implementing’ Union law. Classically, of course, a Member State is ‘implementing’ Article 51(1) when it exercises a discretionary power pursuant to a Directive or Regulation or when it takes a decision which is within the scope of EU law: see, e.g., Case C-617/10 Åkerberg Fransson [2013] ECLI:EU:C:2013:105; [[2013] 2 CMLR 46].
