Monday, November 21, 2011

The narrow application of Zambrano: Towards an inclusive citizenship?

We recently attended an excellent seminar hosted by the Irish Centre for European Law  on the hot topic of Zambrano and EU citizenship. The seminar was entitled ‘Union Citizenship in Practice’ and had eminent speakers, including Advocate General Eleanor Sharpston of the Court of Justice of the European Union. 

There were several interesting presentations that covered highly relevant areas such as the rights of third country family members of Union citizens, reverse discrimination and the approach of the Irish courts to the decision in Zambrano. The Honourable Mr Justice Gerard Hogan chaired the session. 

We were yet again struck by the narrow application of Zambrano by both the Department of Justice and Equality and the Irish courts which was highlighted by Michael Lynn, BL in his paper ‘Citizenship and Residence Rights in Ireland’. 

The narrowness of the interpretation was made more striking this week by the inauguration of our ninth President, Michael D Higgins, who has spoken passionately and eloquently about the concept of an inclusive citizenship. Michael D Higgins aspires to a citizenship that allows each citizen to participate in society and to develop their personal and social selves in communal solidarity. 

Alan Shatter does not appear to agree. 

The model of citizenship being applied by the Department of Justice and Equality in whether to grant residence to the foreign parents of Irish citizen children, appears to be far from such an inclusive citizenship. An Irish citizen child now residing outside the State will struggle to fit into the criteria being applied by the Department. They are expected to reside outside the State until they reach 18, whereupon they may return to the State and enjoy their citizenship fully. Their inclusive citizenship will, it seems, have to wait until they are eighteen. 

In our view, it is fundamentally unfair and inconsistent with our Constitution and EU Treaty provisions that Irish citizen children enjoy different rights and entitlements, depending on their parentage and residence. That a child can simply reassert their Irish citizenship when they turn 18 and become independent from their parents flies in the face of any concept of inclusive citizenship. As Justice Fennelly stated in his dissenting opinion in the Supreme Court decision of A.O. & D.L.: “The notion of postponement is offensive to logic ... a child, who is de facto deported from the State before his education commences, cannot conceivably be “part of the Irish nation” or “share its cultural identity and heritage.”

Brophy Solicitors

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