Nigerian father of Irish boy loses appeal over residency
Published 20/10/2016 | 16:47
A Nigerian man who has an Irish citizen son has lost his appeal aimed at overturning a refusal to grant him residency here.
The Court of Appeal upheld a High Court finding the man, whose Nigerian-born wife is now a naturalised Irish citizen, had not shown an arguable case entitling him to have the refusal judicially reviewed.
His appeal against the High Court decision centred on whether EU law prevented him being refused residency by reason of his being the father of an Irish citizen child.
He particularly relied on what Mr Justice Gerard Hogan described as the "ground-breaking" European Court of Justice (ECJ) “Zambrano” decision. That ruling said the right of EU citizens to live in EU territory might be jeopardised if third country national parents of young dependent EU citizen children were refused a right of residence.
Giving the appeal court's judgment, Mr Justice Hogan said, from this family’s perspective, and in the best interests of the children, it would be "desirable" the man continue to live with them.
It was “impossible not to have considerable sympathy” for the man’s wife, who had to choose between going with him to Nigeria or raising her children in an advanced Western economy like Ireland, he said.
However, such considerations were not in themselves "decisive". The core issue, as the ECJ had made clear in the Zambrano case, was whether refusing residency to the man would effectively mean his Irish citizen child would have to leave EU territory.
The evidence suggested there was no "appreciable risk" of that here, the judge found.
The man was previously deported in 2009 before re-entering illegally in 2014 and his wife did not follow him in 2009 to Nigeria, the judge noted.
His wife is a naturalised Irish citizen working here and their two children (only one of whom is an Irish citizen) were "even more integrated" into the Irish school system now than in 2009.
The wife has access to “high-quality healthcare” here to address her mental health issues which appear to be "successfully managed" and there was no evidence she would be unable to look after her children without her husband’s presence here, he said.
The Minister's refusal of residency also represented the exercise of the sovereign power of the State to control and regulate the rights of third country nationals, the judge said.
That meant the State was not "implementing" EU law for the purposes of the Charter of Fundamental Rights of the EU and the Charter did not apply to this case.