Tuesday, March 22, 2011

Keeping you up to date on Zambrano


MINISTER SHATTER’S RESPONSE TO ZAMBRANO


The recently appointed Minister for Justice, Equality and Defence, Mr Alan Shatter, has released a statement in response to the ground breaking judgement by the European Court of Justice  in Ruiz Zambrano v Office National De L'Emploi –  (Case C-34/0). 

The Minister has confirmed that the Department of Justice will examine all cases before the courts where parents of Irish citizen children have challenged deportation orders against them. He has confirmed that the Department will also commence an “urgent review” of all pending applications to revoke deportation orders where the Zambrano judgement may be relevant. The Minister has even specifically referred to cases where deportation orders have already been carried out.

Mr Shatter is further quoted in The Irish Times today as follows;

“Where there is an intact and real relationship there is very little doubt the child is entitled to both parents living with them in the State”.

It thus appears now that the Department face the task of assessing hundreds of cases whereby non EEA parents of Irish citizens have been wrongfully refused the right to live and work in the State.  From the comments of Mr Shatter, it seems that many of these decisions may be quashed by the Department of Justice and permission granted without the need for High Court litigation. This is a very positive and essential step the Minister has taken in order to avoid a flood of High Court Judicial Reviews in respect of each individual case.

In light of this statement, Brophy Solicitors would strongly recommend that all non EEA parents of Irish children who are currently residing in the State without lawful permission, or who have a restricted residency permission, or who have been refused visa to enter the State, or already been deported,  immediately submit an application to the Department of Justice for consideration on the basis of the Zambrano judgement. Please contact us if you have any questions in this regard. 

Karen Berkeley, Brophy Solicitors 
22.03.11

9 comments:

  1. Does the Zambrano ruling mean that non-EEA spouses of Irish citizens are now entitled to full Stamp 4 EUFam cards? Does it signal the end of 'reverse discrimination'?

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  2. hi, i am a nigerian father of an irish citizen born to an irish mother a few months after i was deported. although my partner and i were never married. am i entitled to return to the state as i have never seen my son?

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  3. Hi Rosario,

    Thanks for your comment. It remains to be seem what specific approach the Department of Justice will take to applications for residency of Non EEA National parents of Irish citizens children. The current Department policy is that stamp "4 EU Fam" is a specific type of residency permission granted to applicants pursuant to Directive 2004/38. The EU Fam catagorization provides rights more expansive than residency, for example the right to enter other Member States without a visa.However, the applicants for residency that follow Zambrano (like the "Chen" cases) fall outside the Directive 2004/38. While there is no reason why the EU Fam catagory could not be expanded to include such persons, it is more likely that Non EEA National parents of Irish citizens will be granted stamp 4 permission under domestic law. However, there is actually no clear avenue to make such applications for residency: it is unclear whether applications should be submitted to General Immigraiton Section, the IBC Unit or perhaps the EU Treaty Rights Section, and it is unclear what the application requirements are. Does the Applicant need to prove dependancy, as in the Zambrano case? To what extent is dependancy as necessity for an entitlement for permission to remain? In Ireland, it is our policy to regard children as dependant until the age of 23 if they are in full time education. Will we apply the same reasonging to Zambrano like cases?

    Regarding whether Zambrano signals the end of reverse discrimination, I would think it signals the beginning of the end of such discrimination in respct of a specific group of people - Union citizen children. However, it will take many more ECJ judgements, or perhaps the implementation of new legislation from the Commission, before the rights and entitlements of all Union citizens within their the State of their nationality is clear. The question of whether the Zambrano reasoning can and will be applied to other family member groups is being debated in the High Cour already. I would think it wont be long before there is a reference to the ECJ for clarification on all the questions Zambrano has raised.

    Do get in touch with us if you have any other questions.

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  4. Hi Talktolenin,

    Thanks a lot for your comment.

    You may submit an applicatin for a Long Term Join Family Member Visa application to travel to the State for the purposes of joining your child. The application should be grounded on your child's entitlement to grow up in this State with both parents based on the The Irish Constitution, The European Convention of Human Rights and following Zambrano, you can now rely on EU Treaty Rights. However, in the Zambrano case the EU citizen child was dependant on both parents. On a strict following of the facts of this case, the right to reside of parents of EU citizen children may only arise where dependancy exists.

    Please do email us at info@brophysolicitors.ie if we can help any further.

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  5. Am a Nigerian father to an Irish born citizen,i was giving an importation order to leave the state on or before the 31st of March 2009 which i did comply with.I left the state on the 29th of same month.I want to know if i still have the right to come back to Ireland to reside with my family.

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  6. Hi, I would like to know if a non EEA step father has any rights under Zambrano, if he is living with his dependant Irish citizen stepchild and the childs mother. I would be grateful for your advice

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  7. hi, i am a romanian citizen parent of a irish citizen and i got a refusal from Dept of Justice on Zambrano case. I would be grateful for a advice. thanks

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  8. Dear Charlotte,

    Many thanks for your comment. It is an interesting query and I hope we might be able to help. As you may know, a non EEA step father does not fit exactly within the facts of the Zambrano case. However, on reading the judgement, it appears that there may be strong arguments to be made - relying on the principles of Zambrano - that a step father should have permission to work and reside in the State provided the Irish citizen child is resident in the State and is dependent on him. The strength of the arguments will depend on the facts of your particular case and the supporting documentation provided with the application. We would be happy to discuss further and you might contact the office directly on info@brophysolicitors.ie or 016797930.

    Kind regards,

    Brophy Solicitors

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  9. Dear Mihaita,

    Thank you for your query regarding the position of Romanian citizens with Irish citizen children. I would suggest that you contact us directly to discuss your situation and the refusal you have received. We can discuss with you if there are grounds to challenge this further. We are contactable by email on info@brophysolicitors.ie or on 016797930.

    Kind regards,

    Brophy Solicitors

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