ZAMBRANO UPDATE

 APPLICANTS FROM OUTSIDE THE STATE

We have made a number of applications for fathers of Irish citizen children residing outside the State to join their Irish citizen children in Ireland.  The procedure necessarily involves an application to the appropriate Irish Embassy for a long-stay visa to enter the State.  The delays on such applications have already been considerable and yesterday we received  notification from an Irish Embassy confirming that because we had raised ‘Zambrano type submissions,’ in our application for a long-stay visa for the father of an Irish child, the matter would be sent for ‘further investigation’ to the offices of the Department of Justice and Equality in Dublin.   The note concluded that as there have been large numbers of applications submitted in light of the Zambrano judgement it may be some time before there is a decision on these cases.

It therefore appears that Visa Offices outside the State are taking roughly two to three months to review applications before sending the same application for further investigation to Dublin.  We have been told by the Visa Office in INIS that they will take a further 2 months to conclude their investigations, but in reality are taking longer again. Surely this delay is unjustified!

We might remind the Minister about his Statement he released on the 27^th April 2011.  We include the link<http://www.inis.gov.ie/en/INIS/Pages/PB11000004> to this Statement but you will find that it has expired as the statement has been removed from the INIS website.  Luckily we saved a copy of the Statement on our files.   Parents of Irish citizen children ‘outside the State’ were listed as one of the definitive eligible categories of applicants designated by the Minister following the Zambrano decision.  The Minister was very clear in his note below that applicants outside the State should apply to a local Embassy/Consulate and provide documentation showing a ‘clear link to the Zambrano judgement.’  It appears that problems have arisen within the Department concerning this category of applicants and further information has not been provided to date.

It is interesting that Department subsequently (some time around the 12^th July 2011) released revised guidelines in respect of eligibility for “Zambrano Applications”. See the following question and answer currently posted on the INIS website (http://www.inis.gov.ie/en/INIS/Pages/WP11000038);

Question 3

“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.”

This statement appears to be in direct contradiction to the Minster’s earlier statements in April 2011. We regard the position to be somewhat different to the Minister’s current very restrictive interpretation of the Zambrano judgement. We submit that the rights upon which a parent of an Irish citizen can rely arises from the Treaty of the Functioning of the European Union, including in particular Article 18, Article 20 and Article 21. We would highlight that while the ECJ cases such as Zambrano and Zhu and Chen are certainly very relevant to the Applicant’s situation, the judgements are not in themselves the primary source of law upon which the Applicant relies - which is the Treaty of the Functioning of the European Union.  We submit therefore that the Minister’s apparent exclusion of the parents of Irish citizen’s not resident in the State is not in accordance with EU Law.

We continue to submit applications for visa/residency for parents outside the State who wish to join or re-join their Irish citizen children residing in the State.  It is unfortunate that many of these applicants were deported shortly before the Zambrano decision came through.  They have now spent several months apart from their families with the prospect of now having to wait for a further considerable period until their applications have been decided.  We call upon the Minister to immediately review his position in light of his earlier comments.

Brophy Solicitors

24.08.11

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