Thursday, March 10, 2011

Significant Development in Irish Immigration Law - Decision in Zambrano


The European Court of Justice has just delivered a judgement - Case C-34/0 Ruiz Zambrano v Office National De L'Emploi - which will have major implications in respect of the right to reside for non EEA family members of Union Citizens within the territory of their own national State. Until now, Union Citizens could only exercise their EU Treaty Rights on moving from one to another Member State, hence the body of law which developed became known as “Free Movement Law”.
Mr Ruiz Zambrano and his wife, both Colombian nationals, applied for asylum in Belgium due to the civil war in Colombia. The Belgian authorities refused to grant them refugee status and ordered them to leave Belgium. The couple continued to reside in Belgium while awaiting applications to regularise their status. Mr Ruiz Zambrano's wife gave birth to two children who acquired Belgian nationality. At the time of birth of the children, Mr Zambrano was financially self-sufficient. He later became unemployed and was refused unemployment benefits because the Belgian authorities found that he did not comply with the foreigners' residence requirements under national legislation. Mr and Mrs Ruiz Zambrano were also refused residency application in their capacity as ascendants of Belgian nationals.
Proceedings were issued on behalf of Mr and Mrs Zambrano, and a reference was made to the European Court of Justice seeking clarification on whether the Zambranos could rely on rely on European Union law to reside and work in Belgium on the basis of their parentage to Union citizen children who have never exercised their rights to free movement.
The ECJ confirmed that as Union citizens, the Zambrano children enjoyed the fundamental status of nationals of the Member States. The ECJ confirmed that European Union law precludes national measures, which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union. The ECJ held that if the Belgium authorities refused a right of residence and work to Mr and Mrs Zambrano, this would in effect deprive their dependant Union citizen children of their fundament rights to reside within the European Union, as they would be obliged to leave Belgium with their parents.
In summary, the ECJ held that as follows;
“Citizenship of the Union requires a Member State to allow third country nationals who are parents of a child, who is a national of that Member State, to reside and work there, where a refusal to do so would deprive that child of the genuine enjoyment of the substance of the rights attaching to the status of citizen of the Union. This requirement applies even when the child has never exercised his right to free movement within the territory of the Member State.”
The implications of this judgement are potentially very wide ranging. The ECJ’s reasoning can be applied to all domestic law cases whereby Union citizens are seeking residence permission for their family members or dependants within their own national State. Thus, Irish citizens may now seek to rely on a huge body of European legislation and caselaw in respect of the right to be joined and reside with family members, such law having previously been deemed to be extraneous to their case. Many deportation orders against parents of Irish citizen children may have to be reconsidered, including deportations which have already been effected. Similarly, visa applications in respect of family members of Irish citizens may no longer be regarded to be at the absolute discretion of the Minister for Justice. Previously refused visa applications may require review. 
The next year will certainly be an interesting one in the field of Irish Immigration Law! We look forward to hearing your thoughts and questions on this important development.

Karen Berkeley, Brophy Solicitors


  1. We received the following query in on this topic from Raj who asked:
    Please explain exactly what this mean " non EEA parents of Irish children ".I saw many non eu people misunderstand and myself by the meaning of Irish born child. Thank you in advance and hope to hear from you soon.

    Karen Berkeley replied:
    The term Irish children refers to children who have Irish citizenship, as opposed to children who are born in Ireland who are not entitled to citizenship. Before the law changed in respect of entitlement to citizenship by birth (in January 2005) all children born in Ireland were entitled to citizenship by birth, and the term used for children of non national parents at that time was "Irish Born Child". Now we don't use this phrase as it caused confusion, as we must distinguish between children who are Irish citizens, and children who are not Irish citizens. I hope this answers your query!

  2. Brophy Solicitors
    Read it carefully Zambrano case as it does affect me personally. Came to Ireland on 2001, had a baby on 2002 which according to the prior citizenship law is Irish Born Child. On 2005 got residential status based IBC. Initially had some significant drawbacks for instance no rights for third level education.
    On 2007 got another baby which according to new citizenship law this child is become stateless ( need to go back to my country for the application procedure and no embassy from my state exist in here) because my recognized residential status was only 2 in half years prior of the baby birth.
    My question are : apart the right to stay here what other benefits this case should bring to me?
    And what I'm more concern is my second child, does this ruling would bring a benefit in relation to the siblings of the IBC?
    Really appreciate your opinion.
    Thanks in advance.

  3. Dear Sonila,

    Thank you for your comment. You have a number of queries and we would suggest you contact us directly to discuss this further. Our office is contactable on: and we would be happy to assist you.

    Kind regards

    Brophy Solicitors

  4. it had impressive post about Significant Development in Irish Immigration Law. this is very determinant policy for immigration no doubt.

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