We have noticed some inconsistent decisions issued from the Department of Justice and the various Embassies in respect of residence/visa applications for the parents of Irish citizen children, where the Irish child may not be ordinarily resident in the State.
The Department takes the view the Zambrano judgement is applicable to situations only where the Irish citizen child is ordinarily resident in the State. It is stated on the INIS website as follows;
"If an Irish born citizen child has not been ordinarily resident in Ireland then his/her parent(s) cannot rely on the Zambrano Judgment as a basis for securing a right of residence in Ireland."
This view is certainly open to challenge if, on the basis of the Zambrano, Dereci, Chen and many other Court of Justice cases, it has been established that an EU citizen child has a right to grow up in the EU and that right must be facilitated by allowing that child’s primary carer a right of residence with the child. The rights vindicated by these judgements derive from the child’s Treaty rights as an EU citizen, and not from the judgements of the ECJ. Therefore, to require an applicant to prove their family circumstances fit exactly within the circumstances of a precedent ECJ case is unfair and an incorrect application of EU law.
We were recently disappointed to receive negative decisions in Zambrano-type visa applications for two Syrian nationals and their Irish citizen child to enter and reside together in the State as a family unit, and similarly in respect of a Pakistani mother and siblings of an Irish citizen child living in Pakistan. In the refusal considerations, the Department made no reference to the child's rights as a citizen of the EU under the TFEU and did not even mention the Zambrano judgement in it’s very detailed analysis of the case!
Meanwhile, another client resident outside the State has recently been granted a Zambrano residence permission the basis that her Irish citizen daughter recently moved to Ireland to live with her sister.
We have also noted an increasing delay in respect of the determination of Zambrano type applications made within the State. Intitially after the Zambrano judgement, most of our applications were determined within 3- 6 months. Now, it appears that many applicants are waiting between 6 and 12 months to obtain the decision on their application. In one particular instance, a Syrian couple has been residing in the State with two young Irish citizen children with no income. Facing near destitution apart from some assistance they have received from relatives and other Irish nationals, the family has an application for residency pending for seven months. Unable to return to their home in Syria, the family have been through a horrendous ordeal and requests for temporary permission to reside and work pending determination of application have been ignored. The Minister has been put on notice as to the urgency of this case and we shall keep you updated on all developments in respect of our pending Zambrano decisions.