Permission to challenge State on non-EU dependant refused
The Irish Times
Tuesday, November 24, 2009
AN IRISH man, his Chinese-born wife and their two Irish-born children have been refused permission to bring a High Court challenge to the States refusal to allow her widowed mother to live with them in Ireland.
Mr Justice John Edwards ruled yesterday that the Moylan family had failed to make out the substantial grounds necessary under law in asylum and immigration proceedings before judicial review proceedings may be brought.
The action by the Lusk, Co Dublin-based family, all Irish citizens, was regarded as a test case relating to the rights of Irish citizens to have their non-EU dependent relatives live with them here.
John Moylan, who works in RT, and his wife, Tingting, a naturalised Irish citizen, wanted her mother, Lihua Wang, in her 50s, to live with them as a dependant. They said they would pay all her costs, including private health insurance, so she would not be any burden on the State.
Mr Justice Edwards said the family had effectively alleged reverse discrimination in that they were being treated differently from non-Irish EU nationals who live here and were entitled under an EU directive on freedom of movement to have their dependent parents reside with them here.
For there to be reverse discrimination, two people must be in a situation of equivalence and one must be treated differently, but that was not the case here.
Tinting Wang was not in a position equivalent to that of a non-Irish EU worker who came to Ireland to take up a job and wished to have a non-EU dependent mother come to live with them, Mr Justice Edwards added. The non-Irish EU worker was exercising their freedom of movement rights under EU treaties and that was not the case here.
He also found there was no prima facie evidence the right to family life under Article 8 of the European Convention on Human Rights was engaged. He was not satisfied the family had shown substantial grounds for their claim that the Minister, in refusing their application, failed to have proper regard to the exercise of his discretion under the Immigration Act.