Judge calls on State to consider ruling

 

A HIGH Court judge has said a judicial conference should be convened to discuss the implications of a European court ruling this week that could herald a “new era” for cases involving the parents of Irish citizen children.

Judge John Cooke also urged the Government to take a formal position on the Zambrano judgment as soon as possible to provide clarity on a large number of judicial reviews involving the parents of Irish citizen children.

The European Court of Justice ruled on Tuesday that the non-European Union parents of an EU citizen child must be allowed to live and work in that EU state, where a refusal to do so would deprive the child of the enjoyment of the rights of citizenship.

The landmark ruling appears to call into question the Government’s policy of deporting scores of parents of Irish citizen children over the past five years. Twenty Irish citizen children have been forced to leave the country over the past five years following the deportation of their parents. More than 100 judicial reviews seeking leave to appeal against deportation on the basis of being the parent of an Irish citizen child are pending in the High Court.

In a hearing involving a Nigerian father of two Irish citizen children, who is seeking leave to appeal a deportation order, Mr Cooke said yesterday the ruling would need to be discussed by all judges dealing with asylum and the president of the High Court.

He said it is “highly likely” that an Irish case or cases would have to go to the European Court of Justice to provide additional clarity on the specific rights of the parents of Irish citizen children.

“One has just begun to consider the implications of Zambrano and there are a number of matters that may require clarification,” he said.

He adjourned the hearing to allow the State to consider the ruling. The hearing involved a Nigerian father of two Irish citizen children, who argued the decision to deport him was “irrational and unlawful” because it relied on the assumption his family could migrate to Nigeria with him to preserve the unit of the family.

Counsel for the applicant told Judge Cooke the Zambrano case was directly applicable to his client’s case. Counsel for the State said his instructions were to apply to adjourn the matter as the Zambrano judgment would have to be looked at at a high level within the Department of Justice.

Judge Cooke, who is one of the main judges hearing asylum cases in the High Court, said the Zambrano judgment was very significant and it would be wholly unreasonable not to allow the State time to consider the ruling. He said the sooner the State took a formal position on the ruling the better.

He said clarification may be required from the European court over when exactly the rights to residency in an EU state came into force. He said many of the cases pending in the High Court originated before article 20 of the EU treaties came into force with the Lisbon Treaty and questioned whether these would be covered by the Zambrano judgment.

He said the European court may have to clarify whether the State can refuse residency to parents on the basis they entered the State illegally; and whether the right of residency applies when one parent has residency and the other faces deportation.