15 Eur. L. Rep. 1 (2011)

handle is hein.journals/eurlawreo15 and id is 1 raw text is: [2011] EuLR

High Court of Ireland (Judicial Review)
Cooke J
B                                                         3 December 2009
[2009] IEHC 531, [2009 No. 1139 JR]
Immigration - Judicial review - Application for leave to apply for order for
certiorari- Whether decision to refuse application for residence card wrong in
law - Free movement of persons - Rules of the Superior Courts, Ord 84 -
Council Directive 2004/38/EC, Art. 2 - European Communities (Free Movement
C                 of Persons) (No. 2) Regulations 2006, regs 2-5
The first applicant (AN.O) was a Nigerian man, resident illegally in Ireland.
The second applicant (AM.O) was a Nigerian woman who was also the
D   mother of the third applicant, a child who was also an Irish citizen (E).
Following the failure of their claims for asylum in Ireland, both the first and
second applicants sought permission to remain in the country on the basis of
their relationship to E. The mother, AM.0, was granted temporary leave to
remain, lasting until 2010. The stepfather, AN.0, applied for permission to enter
or remain in Ireland under the provisions of the European Communities (Free
Movement of Persons) (No. 2) Regulations 2006 (SI 656/2006), as amended
E   (the 2006 Regulations). This application was refused, with the refusal letter
stating that E could derive no benefit from the provisions of Art. 3 of Council
Directive 2004/38/EC (the 2004 Directive) because he had not exercised his
EU Treaty rights in a Member State other than the one of which he was a citizen,
i.e. the Republic of Ireland.
The applicants now sought an order of certiorari to quash the refusal to
consider AN.O's application, on the basis that the decision was wrong in law.
F   The applicants contended that given that E was an EU citizen he was entitled,
under both the 2006 Regulations and the 2004 Directive, to be joined in Ireland
by his stepfather, AN.0, who was a qualifying family member, or alter-
natively a permitted family member, and that it was immaterial that E was an
Irish citizen in addition also to being an EU citizen and that he had not exercised
any right of movement between two Member States and the Union.
The applicants further submitted that the way in which the 2006 Regulations
implement the 2004 Directive gave rise to a form of reverse discrimination
G against E insofar as, as an Irish citizen residing in Ireland, he was effectively

0 2011 Hart Publishing Ltd.
CCC 1091-3297/11/010001-9

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