ZAMBRANO UPDATE

AUSTRIAN REFERENCE TO COURT OF JUSTICE ON THE RIGHT OF THIRD COUNTRY NATIONAL FATHER OF UNIION CITIZEN CHILDREN TO RESIDE IN EU

The Austrian courts have made lodged a Preliminary Reference to the Court of Justice on the  25^th May 2011 in the case of Dereci and Others v Bundesministers fur Inneres. The reference is involves a request to the Court of Justice to clarify the findings in Zamrbano.

The facts of the case involve Mr Dereci, the first named applicant, who is a Turkish national. He arrived in the Member State without permission in 2001, and unsuccessfully applied for asylum. He subsequently married an Austrian citizen in 2003, and had three children of Union cititizenship. He was without permission to reside and work, and the mother of the children was reliant on State Welfare payments. The question of his right to be granted residency in Austrian came before the Austrian courts, which subsequently referred the following questions to the Court of Justice;

(a) Is Article 20 TFEU to be interpreted as precluding a Member State from refusing to grant to a national of a non-member country - whose spouse and minor children are Union citizens - residence in the Member State of residence of the spouse and children, who are nationals of that Member State, even in the case where those Union citizens are not dependent on the national of a non-member country for their subsistence? (Dereci case)

(b)    Is Article 20 TFEU to be interpreted as precluding a Member State from refusing to grant to a national of a non-member country - whose spouse is a Union citizen - residence in the Member State of residence of that spouse, who is a national of that Member State, even in the case where that Union citizen is not dependent on the national of a non-member country for his or her subsistence? (Heiml and Maduike cases)

(c)    Is Article 20 TFEU to be interpreted as precluding a Member State from refusing to grant to a national of a non-member country - who has reached the age of majority and whose mother is a Union citizen - residence in the Member State of residence of the mother, who is a national of that Member State, even in the case where it is not the Union citizen who is dependent on the national of a non-member country for her subsistence but rather that national of a non-member country who is dependent on the Union citizen for his subsistence? (Kokollari case)

(d)    Is Article 20 TFEU to be interpreted as precluding a Member State from refusing to grant to a national of a non-member country - who has reached the age of majority and whose father is a Union citizen - residence in the Member State of residence of the father, who is a national of that Member State, even in the case where it is not the Union citizen who is dependent on the national of a non-member country for his subsistence but rather the national of a non-member country who receives subsistence support from the Union citizen? (Stevic case)

Perhaps the Court of Justice will use this opportunity to test the boundaries of the novel legal principles laid down in the Zambrano case. However, we understand that this reference is not to be expedited by way of the accelerated procedure, and therefore it may be a number of years before we receive the Court of Justice determination.

Brophy Solicitors

27.7.11