Friday, April 15, 2011

Reflections on Zambrano


ATTENDANCE AT SEMINAR ON THE ZAMBRANO DECISION AND ITS IMPACT ON CONSTITUTIONAL LAW, EU LAW AND IMMIGRATION LAW IN IRELAND

Yesterday evening I attended a seminar on the recent Zambrano judgement, presented by Dr. Stephen Carruthers, Dr. Elaine Fahey and Dr. Fergus Ryan at the Dublin Institute of Technology. 
The speakers addressed some of the many queries that the Zambrano judgement has raised. At the outset, it was acknowledged by all speakers that the judgement is certainly a landmark decision in EU law, and was referred to as being of as much significance as the seminal “Van Gen Den Loos” judgement of 1963, which established the concept of Direct Effect in EU Law.
The speakers discussed the most major development progressed in Zambrano, which is that the Court of Justice has established a source of EU legal rights independent of the “Free Movement” requirement which until now has been a fundamental prerequisite. There followed an interesting discussion on what the parameters of this progressive step might be, which are of course difficult to ascertain at this time.
The speakers pointed out a number of interesting points concerning the Zambrano judgement.
It is set out in a short nine page judgement, and it was suggested that the implication of this being that there may have been much dissent amongst the judges who are required to reach a unanimous determination.
It was also pointed out that Advocate General Sharpstens analysis and conclusions regarding reverse discrimination were avoided by the ECJ and thus we are left with more question s than answers – the obvious question being why can all Irish citizens not now also rely on their Union citizenship rights, and claim all entitlements deriving there from. From an Irish Immigration point of view, such a position would lead to huge changes as currently, Irish citizens' rights in respect of family unity in particular are quite restrictive compared to those protections afforded by Directive 2004/38 to EU citizens of other Member States residing in Ireland.
The speakers also pointed out the unusual sequence of the ECJ’s reasoning in coming to this point of view – in the Metock case, the ECJ deviated from its own previous judgement in Akrich and confirmed that Union citizens family members have entitlements to join the Union Citizen without having to first reside in another Member State. This judgement confirmed the position that Union citizens must exercise free movement in order to trigger their EU Treaty Rights. Furthermore, it was pointed out that the McCarty case should be watched with interest, as the ECJ have been referred queries of the status of dual nationals. It is expected that this might be the next big judgement, which might shed light on many of the questions that Zambrano has left unanswered.
It was pointed out that the judges refrained from assessing the human rights aspects to the case, and particularly the best interest of the child principles and comparisons were made to the recent case of ZH (Tanzania) v Secretary of State for the Home Department.
When discussion was opened to the floor, queries were posed regarding the retrospective aspect of the decision, the expansiveness of the family members that the principles  could be applied to, the importance of the dependency factor, the importance of financial self sufficiency, and so on. 
The speakers gave interesting perspectives on the changes and were most engaging and passionate on the subject. However, ultimately the questions cannot be definitively answered, and it remains to be seen what will happen next… We will be posting any new developments here and welcome any comments or questions you might have.
Karen Berkeley, Brophy Solicitors

10 comments:

  1. Thanks Karen,
    please share understanding on followings;


    Do you think that person currently on stamp-1 spousal work permit and father of Irish born child qualify under this ruling or this ruling is only meant for people on stamp 2/3?

    please help

    ReplyDelete
  2. Hurrah, this is the thing which I was searching for, what a cool stuff it is!!! online payday loans tn

    ReplyDelete
  3. That’s really very good thing in your blog I like that!! best cheap life insurance

    ReplyDelete
  4. That’s as well nice, hope it will make a Rocking place for youth and I also Hope that will come true. Best of luck!! best affordable life insurance

    ReplyDelete
  5. I am all time fond of reading the blog, when I reached to this blog I wondered to read such informative article, it inspired me a lot thanks. compare insurance rates by zip code

    ReplyDelete
  6. Thanks for sharing such a great and informative post with all of us. Mark Hurd

    ReplyDelete
  7. I love to read and appreciate your work. life ins

    ReplyDelete
  8. I love to read and appreciate your work. life ins

    ReplyDelete
  9. I am all time fond of reading the blog, when I reached to this blog I wondered to read such informative article, it inspired me a lot thanks. payday loans in pomona ca

    ReplyDelete
  10. I have to definitely say that I had been addicted by this marvelous post on the website for the very last couple of hours. Continue the wonderful work… pediatric dentists wheaton

    ReplyDelete