BURDENSOME PROCESS FOR REGISTRATION OF ZAMBRANO CASES

We recently posted about a family residing in Saudi Arabia who was granted permission to enter and reside in the State on the basis of their Irish Citizen Child.  On appeal of their first application which was refused for a number of reasons, we challenged the deciding officer for failing to consider the rights of the European Citizen Child in line with the judgement in Zambrano.  Ultimately the family was granted D Type visas to enter the State.  Upon their arrival, immigration officials at Dublin Airport provided the family which consists of a mother, father and three young children with a one month permission to remain.  The family was directed to register their status with the Minister for Justice and Equality and this was done almost immediately through our office.  

The family have commenced life in their new home.  They found accommodation and the children have been enrolled for the 2012/2013 school year.  The father, who is highly qualified in his chosen field, has been provided with the opportunity to work.  He is unable to do so at present without providing evidence of a Stamp 4.  He is also aware of the fact that the delay in the determination of so called ‘Zambrano’ type cases is considerable. 

We understand that there are two systems in place regarding D Type Visas – i.e. the pre-clearance visa is granted which is followed by the requirement of registering your permission to remain in the State by obtaining the appropriate Stamp on one’s passport and a ‘GNIB card.’  We informed the State that we are aware of two cases based on ‘Zambrano’ pending for over 12 months from this office alone. The INIS website states that ‘legally resident non EEA nationals who have entered the State with the intention of residing for more than three months must register with their local immigration registration officers.’   It seems that our clients, like many others such applicants, are subject to further examination after having been granted a long –stay visa.  They have been requested to make an application to the Zambrano Team in the Department of Justice and Equality which could take up to a year or more to decide.  Again, they must submit all of the documentation already forwarded to visa officials twice.  We were also advised that a temporary Stamp 4 while their application is pending is out of the question.  

The INIS website also provides that ‘the onus is on all Non EEA nationals to keep their residency up to date at all times while they are in the State.’  It is infuriating that our clients and similar families would leave their homes and jobs to relocate to Ireland. They make preparations to continue family life in Ireland based on having obtained long-stay visas to enter the State only to find that in fact they cannot avail of employment and are liable to become undocumented for a long period of time.  The State advised us that unfortunately it is the case that a person’s permission might expire during the determination of an application for residency but nothing can be done about this.  We believe that this is a very serious problem. It is unfair that a country would facilitate a person with a long- stay visa to enter the State only to allow that person to endure a painstaking wait to actually register permission to remain. 

If the State continues to operate in this manner, it should at least allow for temporary permission to issue to those who are lawfully resident in the State and risk becoming undocumented while the Minister decides their application.  The UK Home Office have operated such a system for all Zambrano applicants since the judgement itself was delivered.

We would ask the Minister what is the point of carrying our a full assessment of the Irish citizen child’s rights of residence  from outside the State, when on arrival, the full assessment must be carried out again? If the family visa are granted to enter the State,  why are the child’s  parents,  granted a temporary permission to stay as visitors for one month only,  when the residence application may take over one year to determine? How is this family supposed to support the child in the intervening period? Without lawful permission to reside, applicants become vulnerable, restricted in their proper enjoyment of family life and risk huge financial problems.  Zambrano cases are child focused but yet the Department of Justice’s policy is wholly adverse to the best interest of that child.  

Brophy Solicitors

24.08.12

ZAMBRANO - SUCCESSFUL OUTCOME FOR FAMILY RESIDING OUTSIDE THE STATE

We are delighted for our clients, a Syrian family of five residing in Saudi Arabia, who have all been granted visas to reside in Ireland on the basis of our submissions under the Zambrano ruling and under the Treaty on the Functioning of the European Union.

The two parents of a young Irish citizen child who had been granted Irish citizenship wished to relocate to Ireland based on the fact that they were prevented from returning to Syria.  Their life in Homs had been completely destroyed and the father of the family found temporary work  in Saudi Arabia. The family’s initial application was refused as it was held the Irish citizen child had no connection with the State having never resided here (she obtained her Irish passport based on her birth in Belfast.)  The case was considered under Article 8 of the ECHR, under the proportionality test and the Constitution but the deciding officer failed to consider the child’s rights as an EU citizen and her rights established under the ruling in Zambrano.  Within a matter of weeks the application was re-considered on appeal and the family will enter the State this year.

In a separate but related case, a Syrian family was recently granted permission to enter the State on visitor visas.  The family of two parents of two Irish citizen children left their home in Homs, Syria.  They secured a visitor visa within a matter of weeks and applied for residency under Zambrano.  Their application was made in October 2011 and was decided favourably in June 2012.  

We note that a huge volume of residency applications relying on the Zambrano case are still pending and 9-12 months appears to be the average processing time.  We will keep you updated as to any further developments in this regard.

Brophy Solicitors

30.07.12

Unsuccessful Citizenship Application Relying on Zambrano and Common Travel Scheme

Case Study: Jun Yang Zou v Secretary of State for the Home Department [2012] CSOH 78

This case involved the judicial review of a decision of the Secretary of State to refuse the applicant a residence card. The applicant also sought a declaration that she has a right of residence in the UK. 

The applicant, a Chinese national, arrived in the UK in December 1998 with leave to enter as a student until June 2005. The applicant married her partner who arrived in the UK with no valid leave to enter in 2003 and two children were born to them in 2003 and 2007. In May 2011 the applicant applied for a residency card from the UK Border Agency that was refused in September 2011. The applicant now seeks to challenge this refusal.

The basis of the applicant’s claim is that her first son was born in Northern Ireland and so should be viewed as both an Irish and European Union citizen. The applicant’s son had never been to Ireland, but did possess an Irish passport and so the applicant claimed he should be viewed as a EU citizen. It was acknowledged that neither the applicant nor her husband had a right of residence in the UK and that neither of her children acquired British citizenship by virtue of being born there

The applicant relied on the Zambrano decision in claiming that in order for her son to continue to obtain the benefits of the European Union it was necessary for residence and working rights to be granted to the family. The ECJ decided in Zambrano that Article 20 of the TFEU conferred the status of EU citizen on every person holding the nationality of a member state. In distinction with Zambrano, the applicant’s child was not a national of the country for which a right of residence was being made.

The respondent submitted that the Secretary of State’s decision was a correct interpretation of the case. This decision was made on the basis that the applicant’s circumstances did not fall within the scope of Zambrano as the applicant failed to supply evidence that the dependant national was a British citizen. The Dereci judgement was also referred to in that it would be open to the applicant to seek to claim the present rights in the Republic of Ireland as her son’s chosen state of origin.

The applicant also relied on the common travel area arrangements between the UK and the Republic of Ireland under s 1(3) of the Immigration Act in claiming that Irish citizens have a de facto right to reside in the UK and so European citizenship rights can be extended to the member state where they have a de facto right of residence.

The respondent submitted that the terms of the Immigration Act did not apply to the applicant’s son as he had not arrived in the UK from the Republic of Ireland and so was not in a different position to any other citizen of another member state. Even if the common travel scheme rights did apply to the petitioner’s son, these rights arose from domestic legislation, whereas European Citizenship rights arose from the treaty.

The Court of Session accepted that the circumstances in this case differed from those in Zambrano as the applicant’s son was not a UK national. The case therefore has no application to the petitioner’s circumstances. It was noted in Zambrano that the conditions for the acquisition of nationality are for the member state in question to lay down. It is up to the Republic of Ireland to decide whether to grant the applicant’s son citizenship, despite the fact that neither he nor his family has ever visited the country. Even if the applicants son is entitled to EU citizenship by virtue of the same decision, he has not acquired a right of residence in the UK that flows from EU citizenship. The common travel arrangements have no application to the applicant’s son. Accordingly he is neither a UK national nor someone with an identifiable right of residence in this country. The court upheld the decision arrived at by the Secretary of State and refused the applicant’s petition.   

Brophy Solicitors

21.05.12          

EU Treaty Rights & Article 8 : new UK decision on the application of Zambrano principles

The UK Immigration and Asylum Chamber last week determined Sanade and Others (British children - Zambrano  Dereci ) [2012] UKUT 00048 (IAC)  giving consideration to a number of highly relevant and fluid areas including the rights of British citizen children in light of the recent UK decision of  ZH (Tanzania) v SSHD [2011] UKSC 4 and the reliance on EU citizenship rights following the decisions of the Court of Justice of the European Union in Zambrano   and Dereci.  Of particular interest is the application of the so-called Zambrano principle as clarified in the more recent decision in Dereci where the parties involved have not exercised their Treaty rights. See our previous posting on the decision in Dereci.

The decision arose out of three linked cases that shared similar facts. Each appellant is married to a British woman and each have minor British citizen children who were either born in the UK or have lived there since an early age. Each appellant had been convicted of a criminal offence such that the Secretary of State sought to deport them. Notably, the citizen spouses and children had never exercised Treaty rights to move and reside in another Member State. They are British and have remained there throughout.

The appellants each put forward the argument, among others, that their removal would impair the rights of their citizen spouses and children to genuine enjoyment of the substance of their rights as EU citizens, relying on Article 20 TFEU. That is, that their family life would be infringed on by removal of the non-nationals spouse/father, and this would amount to a deprivation of proper enjoyment of the substance of EU citizenship rights of the remaining family members.

The Tribunal recognised that citizenship of the Union is intended to be the fundamental status of nationals of the Member States, as reiterated in Zambrano. However, citing Dereci, the decision concludes that removal of the father in these cases, while it would have an adverse economic impact on all the families and would impact on the interests of each child living in a household with their father, it would not actually require the spouses or children to leave the UK. In short, economic reasons for maintaining family unity are not sufficient and the effectiveness of Union citizenship does not risk being undermined.

The Tribunal stated that the focus instead should be on the application of Article 8 stating at paragraph 90: “in our judgment, if on the facts removal of the appellant will not require the children or spouse to follow because they have no capacity for exercising their Treaty rights independent of the person facing removal, what is being impaired is not the right to reside in the EU but the right to enjoy family life whilst so residing.” 

The cases therefore fell to be determined on an assessment of Article 8, the protection afforded to family and private life by the European Convention on Human Rights. The Tribunal applied a balancing and proportionality assessment to the facts of each of the three cases, taking into account in particular, the best interests of the child. Following ZH (Tanzania), the Tribunal emphasise that the fact of the British citizenship of the children is held to be of particular relevance when balancing the interests of the State against those of the family, especially where the children have spent a considerable portion of their childhood in the UK and risk losing the advantages of growing up and being educated in their country of nationality, their own culture and their own language.

This decision is helpful for its summary of the principles in the highly significant cases of ZH (Tanzania), Zambrano, and Dereci. It is also instructive in showing the potentially limiting effect of the decision in Dereci. In cases where there is no exercise of EU Treaty Rights, it may be difficult to rely on EU citizenship rights and applicants may be better advised to focus on their family and private life protections under Article 8 of the ECHR.

Brophy Solicitors

17.02.12

ZAMBRANO: STAMP 4 AND EDUCATIONAL SUPPORT

We contacted the Department of Justice and Equality recently in respect of a number of queries raised regarding entitlements to education support for non nationals resident on Stamp 4 Status.

Many persons residing in Ireland are eligible for an ‘Immigration Stamp 4’ which, according to the Minister’s Office, entitles the holder to work without need for an employment permit but does not confer an entitlement to any particular public service or funding as such matters are determined by the relevant government departments or State agencies.   One of our clients has been granted a Stamp 4 for one year based on discretionary Humanitarian Leave to Remain.  She is also the mother of an Irish citizen child and wants to apply for a Stamp 4 pursuant to Zambrano as the policy operating from the Department generally provides for a Stamp 4 for three years. She intends to enrol in a Third Level Education Scheme under which she will be eligible for free fees based on her current status in the State.  However, the eligible categories of stamp holders entitled to avail of such a scheme do not yet specifically cover ‘Zambrano’ type Stamp 4 holders. 

We contacted the State in an attempt to ascertain information on whether or not our client would be entitled to continue to be eligible to avail of free fees under Stamp 4 (Zambrano).  The Minister advised that the Department has no function in matters relating to educational supports and that this issue will be a matter for the Department of Education and Skills.

We have however been informed that the Department of Justice and Equality has set up a dedicated email enquiry database under which education grant awarding bodies can submit queries in relation to the immigration status of their applicants.  Such information is not entirely useful to our client but it would be worth contacting the Department of Education and Skills if you are concerned that your stamp might not entitle you to access educational support. 

We believe that persons who have been granted permission to remain in Ireland to care and support their Irish citizen children, should not be treated any less favourably in terms of accessing services or public funding in respect of education, than those who have been granted permission to remain on humanitarian grounds. There is potential for great confusion as to the type of residency permission that is conferred on a person who is entitled to reside in the State pursuant to Zambrano, a decision that issued from the ECJ relying wholly on the Treaty on the Functioning of the European Union. 

Brophy Solicitors

18.11.11

Zambrano Update! Decision of the Court of Justice in Dereci

The Court of Justice yesterday issued its judgement in Dereci and Others v Bundesministers fur Inneres .

As you may recall from our previous posting this referral by an Austrian court sought clarification on the findings of Zambrano and the interpretation of the Union citizenship provisions in Article 20 TFEU. 

In brief, the facts of the case involve Mr Dereci, the first named applicant, a Turkish national who arrived in the Member State without permission in 2001 and unsuccessfully applied for asylum. He then married an Austrian citizen in 2003 and had three children, all citizens of the Union and all still minors. Mr Dereci did not enjoy permission to work and reside in the State and his spouse was reliant on state welfare payments to support the family. The Union citizens had not exercised their right of free movement and resided in Austria throughout.

The question being determined by the Austrian courts was whether Mr Dereci had a right of residency in Austria. In order to determine this, a preliminary reference was made to the Court of Justice asking, in summary, whether Article 20 TFEU precludes a Member State from refusing a national of a non-member country – whose spouse and minor children are Union citizens – residence of that Member State even where the Union citizens are not dependent on the national of the non-member country for their subsistence. 

In its decision, the Court firstly notes that the ‘free movement directive’, Directive 2004/38 does not apply to the situations at issue because the beneficiaries have not exercised their rights of free movement and continue to reside in Austria. 

The Court then goes on to consider whether the Union citizens may rely directly on the provisions of the Treaty itself concerning citizenship of the Union. The Court notes that such reliance does not require an exercise of free movement and cannot be viewed as purely internal and untouched by EU law, stating at paragraph 61: “the situation of a Union citizen who, like each of the citizens who are family members of the applicants in the main proceedings, has not made use of the right to freedom of movement cannot, for that reason alone, be assimilated to a purely internal situation”.

 

The Court reiterates as stated in Zambrano, that citizenship of the Union is intended to be the fundamental status of nationals of the Member States and finds that as nationals of a Member State, family members of the applicants in the proceedings enjoy and may rely on their Union citizen rights under Article 20(1) TFEU, including against their Member State of origin, in this case Austria. 

Returning again to the wording used in Zambrano, the Court finds that Article 20 TFEU precludes national measures which have the effect of depriving Union citizens of the genuine enjoyment of the substance of the rights conferred by virtue of the status. There is seemingly an obligation on the Member State to observe the genuine enjoyment of the substance of rights as a Union citizen.

So what then, qualifies as genuine enjoyment of the substance of those rights?

The Court here refers again refers to the logic of Zambrano: denial of the genuine enjoyment of the substance of the rights refer to “situations in which the Union citizen has in fact, to leave not only the territory of the Member State of which he is a national but also the territory of the Union as a whole.” Economic reasons, or desire to keep a family together in the territory of the Union, are not found here to be sufficient reason without prejudice to the question of whether the protection of family life is threatened.

With respect of the protection of family life, the Court refers to the protections afforded by Article 7 of the Charter of Fundamental Rights and Article 8 of the European Convention on Human Rights. The Court notes the obligation on the Member State to observe the right to respect for private and family life but does not elaborate greatly on how those protections may apply in the situations referred. The Court states that should the referring court where it considers that the situation is covered by European Union Law, it must consider Article 7 of the Charter and if it considers that the situation is not covered, it must undertake an examination under Article 8 of the ECHR. Either way, an examination of the right to family and private life is necessary but there is no guidance offered by the Court on where such family protections rank in the genuine enjoyment of the substance of Union citizens rights.

  

The Court then concludes with respect of the question referred:

“In the light of the foregoing observations the answer to the first question is that

European Union law and, in particular, its provisions on citizenship of the Union, must be

interpreted as meaning that it does not preclude a Member State from refusing to allow a third country national to reside on its territory, where that third country national wishes to reside with a member of his family who is a citizen of the Union residing in the Member State of which he has nationality, who has never exercised his right to freedom of movement, provided that such refusal does not lead, for the Union citizen concerned, to the denial of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a citizen of the Union, which is a matter for the referring court to verify.”

The decision has therefore provided some clarity on the circumstances in which a non-national may rely on the rights of a Union citizen spouse or child: the basic premise is that the Union citizen must not denied the genuine enjoyment of the substance of their Union citizen rights and can rely on the citizenship provisions in the Treaty directly, despite not exercising their free movement rights.

However, the decision appears to be lacking in detail on the circumstances in which there is likely to be a denial of genuine enjoyment of the substance of those citizenship rights enjoyed by the Union citizen. On the one hand, it appears that the Court has given some leeway to the Member State to refuse a third country residence where their arguments for the rights of residence centre on convenience, economic reasons and a wish to keep the family together. A real threat of relocation outside the Member State and the Union as a whole must be established. However, on the other hand, the Court spells out that it is incumbent on Member State to examine family and private life protections and where spousal ties and relationships with minor children are at question, it appears that such protections may weigh in favour of a right of residence.

We intend to further digest this decision and post updates on its likely impact here in Ireland. As always, we welcome any question or comments you might have.

Brophy Solicitors

16.11.11

REVIEW OF DEPORTATION PROCEDURE NEEDED

BROPHY SOLICITORS strongly urges the Minister to review the conduct and manner in which deportations are carried out in Ireland. The decision to detain a young mother for deportation hours after she suffered a miscarriage is appalling to say the least. The incident was reported by Carl O’Brien in the Irish Times last Wednesday.  

This situation highlights the often inhumane and unjust way in which deportations of men, women and children are handled by the State.  All deportees should be treated with decency and with respect.  The trauma that this young woman suffered is unimaginable. 

Unfortunately we have come across upsetting cases concerning the removal of individuals from the State.  One particular case that we are still actively pursuing concerns a family, the children and father of which were subjects of a deportation order earlier this year.  The case has been resolved and the family has been granted the right to reside in the State.  Without going into the particulars of their case, we were concerned at the manner in which the children, who are also siblings of an Irish child and children of a lawfully resident parent, were treated following their removal from the family home.  

Their father commented: ‘Words are not enough to give a vivid account of how the family felt when the government came to deport three of my children very early in the morning of the 15th of December 2010.  Our happiness turned into sorrow, pain and anguish. The children and my wife were devastated. They were not allowed to brush their teeth or take their bath. We hurriedly packed our things and followed seven GNIB officers onto the bus outside. My little daughter cried all through the day and was crying for her siblings who were taken away from her with her father who has been a necessary support to her. The treatment by the State and the then Minister of Justice made us believe there was no human rights in Ireland. The children will live with the trauma of that ugly chapter for the rest of their lives.   The family was totally devastated and remain traumatised to date.’

In the end the deportation did not go ahead due to the speedy actions of the family’s solicitor at that time.  Thankfully all three children have now been granted permission to reside in the State after submissions were made to the Minister in respect of their lawfully resident mother and father and Irish sibling who are all residing in the State.   All three children have suffered difficulties in school and attend counselling as a result of how they were treated.

Brophy Solicitors

25.08.11

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

IMPACT OF ZAMBRANO: RESOLUTION FOR MR & MRS HURLEY

We noted with interest the positive development in the long running case Gerard and Caroline Hurley that has now finally been resolved. The grant of permission to Mrs Hurley to work and reside was reported by the Irish Times over the weekend. The Irish Times also reported on the plight of Mrs Hurley back in December. 

Caroline Hurley applied to remain in the State on the basis of her Irish citizen child and her marriage to Gerard Hurley, an Irish citizen. The Department of Justice were pursuing the deportation of Mrs Hurley but it appears they had to review their decision following the landmark decision of the European Court of Justice in Zambrano.

We are working on several similar cases and despite some delays in the Department actually processing the so-called Zambrano applications, applicants are finally meeting some resolution and being granted permission to remain. While we obviously welcome the decision of Zambrano and its timely application, we remain surprised that the Department were so intent and often were able to deport individuals such as Ms Hurley, despite their Irish citizen children and Irish spouses and the protections of family life under the Irish Constitution, the European Convention on Human Rights, and the Charter of Fundamental Rights.

We would be interested to hear of any concerns or problems arising from the Zambrano decision and will of course be keeping you update to date on any new developments or successes we have in this area.

Brophy Solicitors
15.08.11

"The McCarthy Case"

JUDGMENT IN CASE C-434/09 / SHIRLEY MCCARTHY V SECRETARY OF STATE FOR THE HOME DEPARTMENT

Another greatly anticipated judgment has been delivered from the European Court of Justice in what has become know as "The McCarthy Case". The case involved a dual national of the United Kingdom and Ireland who was born in the United Kingdom and has always resided there, without ever having exercised her right to move and reside freely within the territory of other EU Member States. She applied for a residence card for her spouse pursuant to European Law, and particularly Directive 2004/38. The UK  Supreme Court referred a query to the Court of Justice regarding whether Mrs McCarthy could invoke the rules of European Union law designed to facilitate the movement of persons within the territory of the Member States.  

The Court of Justice found that Ms McCarthy could not properly rely on the Directive as it protects the right to travel/reside only of those Union citizens who have exercised free movement. The Court further stated as follows:

“Article 21 TFEU is not applicable to a Union citizen who has never exercised his right of free movement, who has always resided in a Member State of which he is a national and who is also a national of another Member State, provided that the situation of that citizen does not include the application of measures by a Member State that would have the effect of depriving him of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a Union citizen or of impeding the exercise of his right of free movement and residence within the territory of the Member States.”

Thus, in the absence of national measures that have the effect of depriving Union Citizens of the genuine enjoyment of the substance of their rights arising by virtue of her status as a Union citizen, such measures have no connection with European Union law and are covered exclusively by national law. 

It is easily interpreted from the Court of Justice’s reasoning that if the UK had taken measures which would infringe upon Ms McCarthy’s genuine enjoyment of her rights as a Union Citizen, this would bring the matter within the domain of European Law. For example, should the UK authorities actually have taken the step to refuse Ms McCarthy’s husband a right of residency under National provisions, without good reason, her rights as a Union citizen would then be infringed and she would have an action in EU Law. Prior to such action by the UK authorities, it seems the Court of Justice will give the UK the benefit of the presumption that they will apply a domestic standard acceptable in European Law terms. Thus, there appears within the judgment a warning to Member States to maintain national measures affecting the citizens of their State such that they do not infringe upon the substance of Union Citizen’s rights.  

It must be accepted that fundamental to these rights of Union Citizens is an entitlement to reside in the Member State of one’s nationality with one’s immediate family members, and additionally, by way of comparison to Directive 2004/38, such dependant family members of one’s spouse/partner. This effectively confirms the Reverse Discrimination argument that we have argued in many of our cases before the High Court – that an Irish citizen cannot properly be treated less favourably under national law than a European Union citizen from another Member State residing in Ireland who can benefit from European Law.

We look forward to any comments or questions you might have on this new decision.

Karen Berkeley, Brophy Solicitors

Reflections on Zambrano

ATTENDANCE AT SEMINAR ON THE ZAMBRANO DECISION AND ITS IMPACT ON CONSTITUTIONAL LAW, EU LAW AND IMMIGRATION LAW IN IRELAND

Yesterday evening I attended a seminar on the recent Zambrano judgement, presented by Dr. Stephen Carruthers, Dr. Elaine Fahey and Dr. Fergus Ryan at the Dublin Institute of Technology. 

The speakers addressed some of the many queries that the Zambrano judgement has raised. At the outset, it was acknowledged by all speakers that the judgement is certainly a landmark decision in EU law, and was referred to as being of as much significance as the seminal “Van Gen Den Loos” judgement of 1963, which established the concept of Direct Effect in EU Law.

The speakers discussed the most major development progressed in Zambrano, which is that the Court of Justice has established a source of EU legal rights independent of the “Free Movement” requirement which until now has been a fundamental prerequisite. There followed an interesting discussion on what the parameters of this progressive step might be, which are of course difficult to ascertain at this time.

The speakers pointed out a number of interesting points concerning the Zambrano judgement.

It is set out in a short nine page judgement, and it was suggested that the implication of this being that there may have been much dissent amongst the judges who are required to reach a unanimous determination.

It was also pointed out that Advocate General Sharpstens analysis and conclusions regarding reverse discrimination were avoided by the ECJ and thus we are left with more question s than answers – the obvious question being why can all Irish citizens not now also rely on their Union citizenship rights, and claim all entitlements deriving there from. From an Irish Immigration point of view, such a position would lead to huge changes as currently, Irish citizens' rights in respect of family unity in particular are quite restrictive compared to those protections afforded by Directive 2004/38 to EU citizens of other Member States residing in Ireland.

The speakers also pointed out the unusual sequence of the ECJ’s reasoning in coming to this point of view – in the Metock case, the ECJ deviated from its own previous judgement in Akrich and confirmed that Union citizens family members have entitlements to join the Union Citizen without having to first reside in another Member State. This judgement confirmed the position that Union citizens must exercise free movement in order to trigger their EU Treaty Rights. Furthermore, it was pointed out that the McCarty case should be watched with interest, as the ECJ have been referred queries of the status of dual nationals. It is expected that this might be the next big judgement, which might shed light on many of the questions that Zambrano has left unanswered.

It was pointed out that the judges refrained from assessing the human rights aspects to the case, and particularly the best interest of the child principles and comparisons were made to the recent case of ZH (Tanzania) v Secretary of State for the Home Department.

When discussion was opened to the floor, queries were posed regarding the retrospective aspect of the decision, the expansiveness of the family members that the principles  could be applied to, the importance of the dependency factor, the importance of financial self sufficiency, and so on. 

The speakers gave interesting perspectives on the changes and were most engaging and passionate on the subject. However, ultimately the questions cannot be definitively answered, and it remains to be seen what will happen next… We will be posting any new developments here and welcome any comments or questions you might have.

Karen Berkeley, Brophy Solicitors

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, 10^th 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

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