Wednesday, March 30, 2011

High Court Challenge in Romanian Case


ROMANIAN AND BULGARIAN NATIONALS


EEA nationals become lawfully resident in other Member State if they exercise their EU Treaty Rights in one of the following ways - work/self employed/study/self sufficient. This is set out in Directive 2004/38, the European Communities (Free Movement of Persons Regulations) (No 2) 2006 (as amended). Romanian and Bulgarian nationals are an exception to this general rule because the Irish government opted to place special restrictions on the right to work for Bulgarian/Romanian nationals. Since 1 January 2007 nationals of Romania and Bulgaria, although EU nationals, may be required to have an employment permit for a continuous period of 12 months to work in Ireland.  All Romanian and Bulgarian nationals, other than those who have been resident in the State on a employment permit, expiring on or after 31 December 2006, for a continuous period of 12 months, are required to have employment permits. Applications for work permits for them will be given preference over those for non-EEA nationals. However, the restrictions are specific to employment permits.  Therefore, it seems to be that if the Romanian or Bulgarian national becomes self employed, they avoid the employment permit restrictions and acquire lawful residency on the basis of Directive 2004/38.

This point is currently being challenged in the High Court, in a case taken by Mr Solavastru and family. See Irish Times Article dated 3rd March 2011.

If you have any questions about the position of Romanian and Bulgarian nationals, please post your comment here and we will be happy to answer your queries. 

Karen Berkeley, Brophy Solicitors 
29.03.11

Tuesday, March 22, 2011

Keeping you up to date on Zambrano


MINISTER SHATTER’S RESPONSE TO ZAMBRANO


The recently appointed Minister for Justice, Equality and Defence, Mr Alan Shatter, has released a statement in response to the ground breaking judgement by the European Court of Justice  in Ruiz Zambrano v Office National De L'Emploi –  (Case C-34/0). 

The Minister has confirmed that the Department of Justice will examine all cases before the courts where parents of Irish citizen children have challenged deportation orders against them. He has confirmed that the Department will also commence an “urgent review” of all pending applications to revoke deportation orders where the Zambrano judgement may be relevant. The Minister has even specifically referred to cases where deportation orders have already been carried out.

Mr Shatter is further quoted in The Irish Times today as follows;

“Where there is an intact and real relationship there is very little doubt the child is entitled to both parents living with them in the State”.

It thus appears now that the Department face the task of assessing hundreds of cases whereby non EEA parents of Irish citizens have been wrongfully refused the right to live and work in the State.  From the comments of Mr Shatter, it seems that many of these decisions may be quashed by the Department of Justice and permission granted without the need for High Court litigation. This is a very positive and essential step the Minister has taken in order to avoid a flood of High Court Judicial Reviews in respect of each individual case.

In light of this statement, Brophy Solicitors would strongly recommend that all non EEA parents of Irish children who are currently residing in the State without lawful permission, or who have a restricted residency permission, or who have been refused visa to enter the State, or already been deported,  immediately submit an application to the Department of Justice for consideration on the basis of the Zambrano judgement. Please contact us if you have any questions in this regard. 

Karen Berkeley, Brophy Solicitors 
22.03.11

Friday, March 11, 2011

Aftermath of Zambrano

ACTIVITY SURROUNDING ZAMBRANO

The potential impact of the Zambrano decision is already making its mark in the office – we have been inundated with calls from clients, members of the public and press.  Brophy Solicitors has certainly welcomed the decision in terms of the benefits and rights arising from a person’s status as a member of the Union and we are aware that the impact of Zambrano is not to be underestimated.  The decision goes beyond the current Free Movement Directive and Regulations in dealing specifically with what it means to be a citizen of the Union.  

We have already released a statement to the press in respect of one of our cases concerning the deportation of the father of an Irish citizen child. (See article by Jamie Smyth, Irish Times, 10th March 2011) The father voluntarily left the State following a deportation order having been issued against him, and judicial review proceedings are in place to challenge the deportation order.  We are now working on the application to revoke the deportation order on the basis of the Zambrano judgment. 

Apart from this very obvious instance of how Zambrano may be applied ,we have to deal with a host of potential situations in which the case may have an impact (or may not). In fact, the case has raised many more questions than answers. For example, to which family members of an Irish citizen will the judgement apply? Can partners and spouses of Irish citizens benefit from the judgment? What about the non-marital family and parents who do not have a direct involvement with their children’s upbringing? How will the decision impact guardians?  What exactly does ‘dependency’ entail? Are all children not dependant on their parents? Do the rights of the EU citizen child extend beyond reaching the age of majority? How will social welfare policy be affected and the requirement of habitual residency? Will parents of Irish Citizen children currently resident on Stamp 3 conditions now have their status amended so that they can reside and work in the State? 

It seems to us that many of these questions can only be confirmed by the courts, and potentially the questions will be referred by the High Court back to the European Court of Justice during the determination of particular cases. 

We welcome the statement released by the Immigrant Council of Ireland saying that Ireland’s practice of refusing to give some parents of Irish children permission to live and work in this country must now end and that those parents who had already been deported must be allowed to return. 

We are now working toward submitting applications to revoke deportation orders as well as making change of status applications for family members of Irish Citizens on restricted residency permits. We are also updating applications for visas for family members of Irish citizens. In fact, we are reviewing all current cases to which we think Zambrano may apply and we are also in dialogue with interest groups and NGO’s in an attempt to pool all knowledge and information. We welcome your comments and questions.

Sarah McCoy, Brophy Solicitors
11.03.11


Thursday, March 10, 2011

Significant Development in Irish Immigration Law - Decision in Zambrano



MAJOR DEVELOPMENT IN THE APPLICATION OF EU TREATY RIGHTS LAW –ZAMBRANO V OFFICE NATIONAL DE L’EMPLOI


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
10.03.11


Work permits for Romanian and Bulgarian Nationals

ROMANIAN AND BULGARIAN NATIONALS


EEA nationals become lawfully resident in other Member State if they exercise their EU Treaty Rights in one of the following ways - work/self employed/study/self sufficient. This is set out in Directive 2004/38, the European Communities (Free Movement of Persons Regulations) (No 2) 2006 (as amended). Romanian and Bulgarian nationals are an exception to this general rule because the Irish government opted to place special restrictions on the right to work for Bulgarian/Romanian nationals. Since 1 January 2007 nationals of Romania and Bulgaria, although EU nationals, may be required to have an employment permit for a continuous period of 12 months to work in Ireland.  All Romanian and Bulgarian nationals, other than those who have been resident in the State on a employment permit, expiring on or after 31 December 2006, for a continuous period of 12 months, are required to have employment permits. Applications for work permits for them will be given preference over those for non-EEA nationals. However, the restrictions are specific to employment permits.  Therefore, it seems to be that if the Romanian or Bulgarian national becomes self employed, they avoid the employment permit restrictions and acquire lawful residency on the basis of Directive 2004/38.

This point is currently being challenged in the High Court, in a case taken by Mr Solavastru and family. See Irish Times Article dated 3rd March 2011.

Karen Berkeley, Brophy Solicitors
10.03.11