ZAMBRANO : THE UK AND IRISH POSITION COMPARED

The following statement was recently posted on the UK Border Agency Website;

“The Court of Justice of the European Union (ECJ) recently handed down judgment in the case of Ruiz Zambrano (C-34/09). This judgement creates a right to reside and work for the sole carer of a dependent British citizen when that carer has no other right of residence in the UK and removing the carer from the UK would mean the British citizen would have to leave the European Union. The UK Border Agency has been considering the effect of this judgement and whether any changes are required to our policy or the law as a result. Until now, we have not accepted applications we have received on this basis as there is currently no provision within the Immigration (European Economic Area) Regulations 2006 (the regulations) to issue documentation on this basis.

We will amend the regulations in due course to enable a person to be issued with a document confirming that they have a right to live in the UK as a result of the Ruiz Zambrano judgement. However, in the meantime, we will issue a certificate of application to those who are able to show:

evidence that the dependent national is a British citizen;

evidence of the relationship between the applicant and the British citizen; and

adequate evidence of dependency between the applicant and the British citizen.

This certificate will enable a person to work in the UK while their application is outstanding. Once changes to the regulations are made, the application will be given full consideration and documentation will be issued under the regulations to those who meet the final agreed policy.”

The UK position is now clear in a number of respects;

In order for rights to arise pursuant to the Zambrano case (or Treaty of the Functioning of the European Union), the applicant must be the parent of a British citizen child, as opposed to the parent of a child of a different Member State citizenship.  The reasoning is that in order for a right to reside for the third country national parent to arise, there must be a risk that the Union Citizen child would be forced to leave the territory of the Member States if that right was not granted, such as the Columbian parents of the Belgium children in Zambrano. The argument that the rights arising from Zambrano will only have effect if the child is to be removed from the territory of the Member States has also been raised in some of our cases in the High Court, and we expect this point will be fully argued out in upcoming hearings in the next court term.

The Irish position is also that the Zambrano judgement applies only where the child is of Irish nationality within Ireland.  However, contradictory policy statements have been made by the Minister in respect of which persons come within the remit of the Zambrano case. Initially, it was indicated that parents of Irish citizen children who are outside the State do come within the ambit of Zambrano, and last week our office received a positive determination on one such case. However, contradictorily, the current policy statement is stated on the INIS website as follows;

“I am a non-EEA national. I lived in Ireland for some years but left some time ago to return to my country of origin. I left voluntarily and was never the subject of a Deportation Order. I am the parent of an Irish born citizen child. Can I rely on the Zambrano Judgment to allow me to reside in Ireland?

Response 3

No. The Zambrano Judgment does not apply to any person who left Ireland of their own volition. Such persons can, of course, apply for a visitor or study visa to visit Ireland but cannot rely on the Zambrano Judgment as a basis to obtain a right of residence in Ireland.”

The idea that the rights arising from Zambrano do not apply to parents outside the State has created a most unusual situation – those parents who follow correct procedure by applying for a visa to enter the State with or to join their Irish citizen child will be refused, when those who enter the State without a visa can immediately submit an application for permission to reside and work and  expect to be approved within a number of months. This categorization of parents of Irish children between those resident within or outside of the State is simply nonsensical .

In the above statement, the Border Agency’s use of the word “sole carer” would seem to exclude from the ambit of Zambrano a parent where that child’s other parent has lawful residence and can continue to reside in the Member States with the child. Such an interpretation appears to place greater weight of a child’s right of free movement as compared to a child’s right to the company of both parents, and is difficult to reconcile with the “Best Interests of the Child Principle”, confirmed by the European Court of Human Rights as the primary factor in cases involving children.

In describing the EEA national from whom the Treaty rights derive, the UK Border Agency uses the term “dependant British citizen”, while the Minster of Justice in public statements has referred to “dependant minor children”. The Irish interpretation that the Union Citizen child must be a minor child excludes those children who are between the age of 18 and 23 in full time education. In one such case we act on, the Minister has explicitly confirmed that Zamrbano does not apply to a 20 year old Irish citizen who is in full time education and fully dependant on her Pakistani father. A deportation order has been issued against her father, and if effected, she will be required to return to Pakistan.

The use of the phrase “carer ” of a British citizen if also of note. In a recent correspondence received from the Department of Justice, our client who is the father of an Union Citizen child  has been requested to provide evidence that he is the “primary carer” of that child. The Department have taken a position that our client is not a primary carer because he is in full time employment and the child is predominantly looked after by the mother while the father works. The fact the family is solely financially supported by the child’s father appears not to considered as significant as the role of the mother who is caring for the child.

We note that the Border Agency has confirmed that the UK will be making amendments to  the Immigration (European Economic Area) Regulations 2006  to provide a right to reside for persons falling within the ambit of the Zambrano Judgment. Given the interpretations as highlight above, we hope they wait for further clarification for the Court of Justice before implementing these amendments!

Pending the proposed statutory amendments, the UK has undertaken to provide applicants pursuant to Zambrano temporary rights to reside and work pending determination of their applications.  This is a very welcome and necessary development. The Department of Justice has not taken this step. Here in Ireland, applicants pursuant to Zambrano, (or pursuant to Chen for that matter)  are not issued with temporary permission to remain, or permission to work, while their applications are being processed. This position is inconsistent with the process applied to those applicants pursuant to Directive 2004/38/EC, who are issued with six month temporary permission to remain and work on submitting a valid application. We see no reason why applicants pursuant to Chen and Zambrano (which are actually pursuant to the Treaty of the Functioning of the European Union) should be treated very much less favourably than applicants pursuant to Directive 2004/38/EC.  The Department of Justice is in effect operating a two tier system of rights, depending on whether the family member of a Union Citizen does or does not fall within the terms of the Directive. We think this is illogical, but also discriminatory.

We have been informed that the Minster has set up a special unit within the Repatriation Section to process applications pursuant. We can only presume that internal guidelines have been prepared to clarify the parameters of that case and the system which will be applied to processing the applications. The current processing system is unclear. For example, it has been indicated to us in Department of Justice correspondences that Zambrano applications are being considered in chronological order. However, in reality this appears not to be the case given the very inconsistent time frames in which our clients are receiving determinations.

We call on the Minister to follow the UK example and provide a clear public policy statement setting out the ambit of the Zambrano case, and confirming the details of a fair and transparent processing system for  these applications. In particular, we request that all Zambrano/Chen applicants be provided with temporary permission to remain pending determination of the Application. We also request that the Minster revert to his initial policy of including all parents of Irish citizen children within the remit of Zambrano.

23.9.11

Brophy Solicitors