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

21.11.11

"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