ZAMBRANO : THE UK AND IRISH POSITION COMPARED

The following statement was recently posted on the UK Border Agency Website;

“The Court of Justice of the European Union (ECJ) recently handed down judgment in the case of Ruiz Zambrano (C-34/09). This judgement creates a right to reside and work for the sole carer of a dependent British citizen when that carer has no other right of residence in the UK and removing the carer from the UK would mean the British citizen would have to leave the European Union. The UK Border Agency has been considering the effect of this judgement and whether any changes are required to our policy or the law as a result. Until now, we have not accepted applications we have received on this basis as there is currently no provision within the Immigration (European Economic Area) Regulations 2006 (the regulations) to issue documentation on this basis.

We will amend the regulations in due course to enable a person to be issued with a document confirming that they have a right to live in the UK as a result of the Ruiz Zambrano judgement. However, in the meantime, we will issue a certificate of application to those who are able to show:

evidence that the dependent national is a British citizen;

evidence of the relationship between the applicant and the British citizen; and

adequate evidence of dependency between the applicant and the British citizen.

This certificate will enable a person to work in the UK while their application is outstanding. Once changes to the regulations are made, the application will be given full consideration and documentation will be issued under the regulations to those who meet the final agreed policy.”

The UK position is now clear in a number of respects;

In order for rights to arise pursuant to the Zambrano case (or Treaty of the Functioning of the European Union), the applicant must be the parent of a British citizen child, as opposed to the parent of a child of a different Member State citizenship.  The reasoning is that in order for a right to reside for the third country national parent to arise, there must be a risk that the Union Citizen child would be forced to leave the territory of the Member States if that right was not granted, such as the Columbian parents of the Belgium children in Zambrano. The argument that the rights arising from Zambrano will only have effect if the child is to be removed from the territory of the Member States has also been raised in some of our cases in the High Court, and we expect this point will be fully argued out in upcoming hearings in the next court term.

The Irish position is also that the Zambrano judgement applies only where the child is of Irish nationality within Ireland.  However, contradictory policy statements have been made by the Minister in respect of which persons come within the remit of the Zambrano case. Initially, it was indicated that parents of Irish citizen children who are outside the State do come within the ambit of Zambrano, and last week our office received a positive determination on one such case. However, contradictorily, the current policy statement is stated on the INIS website as follows;

“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.”

The idea that the rights arising from Zambrano do not apply to parents outside the State has created a most unusual situation – those parents who follow correct procedure by applying for a visa to enter the State with or to join their Irish citizen child will be refused, when those who enter the State without a visa can immediately submit an application for permission to reside and work and  expect to be approved within a number of months. This categorization of parents of Irish children between those resident within or outside of the State is simply nonsensical .

In the above statement, the Border Agency’s use of the word “sole carer” would seem to exclude from the ambit of Zambrano a parent where that child’s other parent has lawful residence and can continue to reside in the Member States with the child. Such an interpretation appears to place greater weight of a child’s right of free movement as compared to a child’s right to the company of both parents, and is difficult to reconcile with the “Best Interests of the Child Principle”, confirmed by the European Court of Human Rights as the primary factor in cases involving children.

In describing the EEA national from whom the Treaty rights derive, the UK Border Agency uses the term “dependant British citizen”, while the Minster of Justice in public statements has referred to “dependant minor children”. The Irish interpretation that the Union Citizen child must be a minor child excludes those children who are between the age of 18 and 23 in full time education. In one such case we act on, the Minister has explicitly confirmed that Zamrbano does not apply to a 20 year old Irish citizen who is in full time education and fully dependant on her Pakistani father. A deportation order has been issued against her father, and if effected, she will be required to return to Pakistan.

The use of the phrase “carer ” of a British citizen if also of note. In a recent correspondence received from the Department of Justice, our client who is the father of an Union Citizen child  has been requested to provide evidence that he is the “primary carer” of that child. The Department have taken a position that our client is not a primary carer because he is in full time employment and the child is predominantly looked after by the mother while the father works. The fact the family is solely financially supported by the child’s father appears not to considered as significant as the role of the mother who is caring for the child.

We note that the Border Agency has confirmed that the UK will be making amendments to  the Immigration (European Economic Area) Regulations 2006  to provide a right to reside for persons falling within the ambit of the Zambrano Judgment. Given the interpretations as highlight above, we hope they wait for further clarification for the Court of Justice before implementing these amendments!

Pending the proposed statutory amendments, the UK has undertaken to provide applicants pursuant to Zambrano temporary rights to reside and work pending determination of their applications.  This is a very welcome and necessary development. The Department of Justice has not taken this step. Here in Ireland, applicants pursuant to Zambrano, (or pursuant to Chen for that matter)  are not issued with temporary permission to remain, or permission to work, while their applications are being processed. This position is inconsistent with the process applied to those applicants pursuant to Directive 2004/38/EC, who are issued with six month temporary permission to remain and work on submitting a valid application. We see no reason why applicants pursuant to Chen and Zambrano (which are actually pursuant to the Treaty of the Functioning of the European Union) should be treated very much less favourably than applicants pursuant to Directive 2004/38/EC.  The Department of Justice is in effect operating a two tier system of rights, depending on whether the family member of a Union Citizen does or does not fall within the terms of the Directive. We think this is illogical, but also discriminatory.

We have been informed that the Minster has set up a special unit within the Repatriation Section to process applications pursuant. We can only presume that internal guidelines have been prepared to clarify the parameters of that case and the system which will be applied to processing the applications. The current processing system is unclear. For example, it has been indicated to us in Department of Justice correspondences that Zambrano applications are being considered in chronological order. However, in reality this appears not to be the case given the very inconsistent time frames in which our clients are receiving determinations.

We call on the Minister to follow the UK example and provide a clear public policy statement setting out the ambit of the Zambrano case, and confirming the details of a fair and transparent processing system for  these applications. In particular, we request that all Zambrano/Chen applicants be provided with temporary permission to remain pending determination of the Application. We also request that the Minster revert to his initial policy of including all parents of Irish citizen children within the remit of Zambrano.

23.9.11

Brophy Solicitors

ZAMBRANO UPDATE

AUSTRIAN REFERENCE TO COURT OF JUSTICE ON THE RIGHT OF THIRD COUNTRY NATIONAL FATHER OF UNIION CITIZEN CHILDREN TO RESIDE IN EU

The Austrian courts have made lodged a Preliminary Reference to the Court of Justice on the  25^th May 2011 in the case of Dereci and Others v Bundesministers fur Inneres. The reference is involves a request to the Court of Justice to clarify the findings in Zamrbano.

The facts of the case involve Mr Dereci, the first named applicant, who is a Turkish national. He arrived in the Member State without permission in 2001, and unsuccessfully applied for asylum. He subsequently married an Austrian citizen in 2003, and had three children of Union cititizenship. He was without permission to reside and work, and the mother of the children was reliant on State Welfare payments. The question of his right to be granted residency in Austrian came before the Austrian courts, which subsequently referred the following questions to the Court of Justice;

(a) Is Article 20 TFEU to be interpreted as precluding a Member State from refusing to grant to a national of a non-member country - whose spouse and minor children are Union citizens - residence in the Member State of residence of the spouse and children, who are nationals of that Member State, even in the case where those Union citizens are not dependent on the national of a non-member country for their subsistence? (Dereci case)

(b)    Is Article 20 TFEU to be interpreted as precluding a Member State from refusing to grant to a national of a non-member country - whose spouse is a Union citizen - residence in the Member State of residence of that spouse, who is a national of that Member State, even in the case where that Union citizen is not dependent on the national of a non-member country for his or her subsistence? (Heiml and Maduike cases)

(c)    Is Article 20 TFEU to be interpreted as precluding a Member State from refusing to grant to a national of a non-member country - who has reached the age of majority and whose mother is a Union citizen - residence in the Member State of residence of the mother, who is a national of that Member State, even in the case where it is not the Union citizen who is dependent on the national of a non-member country for her subsistence but rather that national of a non-member country who is dependent on the Union citizen for his subsistence? (Kokollari case)

(d)    Is Article 20 TFEU to be interpreted as precluding a Member State from refusing to grant to a national of a non-member country - who has reached the age of majority and whose father is a Union citizen - residence in the Member State of residence of the father, who is a national of that Member State, even in the case where it is not the Union citizen who is dependent on the national of a non-member country for his subsistence but rather the national of a non-member country who receives subsistence support from the Union citizen? (Stevic case)

Perhaps the Court of Justice will use this opportunity to test the boundaries of the novel legal principles laid down in the Zambrano case. However, we understand that this reference is not to be expedited by way of the accelerated procedure, and therefore it may be a number of years before we receive the Court of Justice determination.

Brophy Solicitors

27.7.11

ZAMBRANO UPDATE

ZAMBRANO HIGH COURT LIST

The cases in the High Court “Zambrano List” were listed yesterday before Mr Justice Cooke. Counsel for the State indicated that letters had been sent by the Minister to each applicant requesting further information/documents to be submitted in order to fully assess applicants for residency pursuant to the Zambrano case. Mr. Justice Cooke was satisfied with this progression, and the cases were therefore re listed for the 10^th October 2011 in the new term.

Our concerns relate to the applicants who have already left or been deported from the State, as they remain separated from their families pending the Minister’s determinations. The difficulties for these parents is that Zambrano assessments are based on the parents involvement in the Irish child’s daily life, which is very difficult to prove when a parent is resident out side the State. These cases are therefore somewhat more complicated. It seems that the applicants who have remained residing with their families in the State and have clear criminal records are now receiving determinations. However, it seems unlikely that determinations on cases where the applicant is outside the State will be reached as soon. We do not think it fair that the applicants who have been unfairly removed from the State should continue to be prejudiced in this way. This is particularly  so given that the the Minister has been on notice of Zambrano since March 2011, and made a public announcement that all applications would be dealt with expeditously. We will continue to request immediate determinations for all our clients. 

Brophy Solicitors

26.7.11

ZAMBRANO UPDATE

 POSITIVE DECISIONS IN ZAMBRANO APPLICATIONS 

We are happy to update you that the Minister is now granting permission to reside to the “Zambrano” cases which are currently before the High Court. These are the cases which involve challenges to the deportation orders issued against parents of Irish citizen children. Following the European Court of Justice decision in the case of Zambrano v. Office national de l’emploi, Case C-34/09, 8^th March, 2011, all these cases were transferred into a separate list in the High Court, which has been called  “The Zambrano List”. When these cases were last listed in court, the Minister undertook to contact each of the Applicants prior to the 25^th July 2011 to confirm the Minister’s position on their respective cases.  Recently, we have received a number of correspondences indicating that the Minister is now revoking the deportation orders against these applicants, on “exceptional grounds”, and granting a three year period permission to reside. This permission to reside is subject to the condition that the applicant obey the laws of the State, do not become involved in criminal activity, make every effort to gain employment, not become a financial burden on the State and play an active role in the Irish child’s life. We very much welcome these positive decisions.

Karen Berkeley, Brophy Solicitors

20.07.11

Celebrating World Refugee Day & 60 years of the Refugee Convention

1951 REFUGEE CONVENTION: HAPPY 60TH BIRTHDAY! 

On Monday this week, Professor James Hathaway of the University of Michigan Law School gave an engaging and lively talk ‘Saving international refugee law’, hosted by the Irish Refugee Council and School of Law, Trinity College. The timing of the talk was particularly apt as this year marks the 60th anniversary of the UN Convention relating to the Status of Refugees.

Professor Hathaway set about challenging governments and advocates to move beyond some of the common misconceptions regarding refugee law and protection. He started with misconceptions around the place a so-called ‘real’ refugee seeks protection. The Refugee Convention, he argued, does not say that a ‘genuine’ refugee is obliged to seek asylum in the first place he lands. Decision makers on claims for refugee status often claim this when rejecting applications. Rather family and language ties should be accepted as good cause for claiming refugee status in a particular country and it should be the risks on return that must be at the core of the assessment of the claim. He asked, if we were forced to flee tomorrow, would we not try and go where we had some sort of connection? Professor Hathaway also rounded on the trend in developed countries towards criminalizing refugees who by necessity, break national immigration laws in order to access protection.

Professor Hathaway further tackled the issue of how long States are required to offer protection to refugees. He succinctly argued that there is no provision in the Refugee Convention that entitles refugees to a permanent right to reside in their country of asylum. In fact, Professor Hathaway said that to suggest refugees should have a permanent right to reside under the Refugee Convention is to confuse the issues: rights of residence are conferred under a State’s immigration system. The Refugee Convention requires protection or residence for the duration of risk, he argued.

What Professor Hathaway highlighted which was of particular interest in light of the recent Zambrano decision, are the sometimes overlapping rights that refugees may avail of: a refugee may enjoy the protection of the Refugee Convention, but may also accrue family rights that are protected by domestic provisions such as our Constitution and other law including the European Convention on Human Rights and EU Treaty Rights provisions. It may be under these other provisions that the refugee enjoys rights to permanent or long-term residence but this right does not stem from the Refugee Convention itself.

Professor Hathaway repeatedly critiqued the rhetoric of governments in the developed world, who argue for greater responsibility sharing with developing countries which host approximately 80% of the worlds’ refugees. He observed that this appears only to be rhetoric at present and there is no practical framework or mechanism that formalises such responsibility sharing at present.

Finally, in response to a question from Áine Ní Chonaill of Immigration Control Platform who advocated that Ireland should withdraw from the Refugee Convention, Professor Hathaway stated that remaining a signatory to the Refugee Convention is an ethical, moral decision on behalf of the State but more importantly it is a pragmatic choice. The Refugee Convention offers a framework and a controlling mechanism for processing requests for protection that do not fit within existing immigration systems.

In closing, Professor Hathaway reiterated that he believes the Refugee Convention is a brilliant document that provides protection to some 12 million individuals across the world, more than any other human rights treaty or law. Good reason to celebrate. Happy 60^th birthday!

Brophy Solicitors

16.06.11

Zambrano Update

POSITIVE RESULT IN ZAMBRANO TYPE CASES

We were delighted to receive positive news from the Department of Justice, Equality and Defence in the last week in respect of some of the recent Zambrano applications we have submitted. The approval letters have indicated that the Minister is granting permission to remain of a three year duration.

However, in one such case,  our client was granted permission to remain in the State and work for five years.   This client was the subject of a deportation order affecting her removal to South Africa along with her nine year old daughter who is also a South African national.  Our client was notified that a deportation order had issued against both she and her non-Irish child in August 2010.  When she initially joined her husband in the State she was granted permission to remain for a short period and was advised by her local immigration officer to apply to the Minister for Justice to extend such permission to reside with her husband and children in the State.  She received no response to her residency application and later instructed a solicitor to apply for leave to remain.  This application was ultimately refused.  She had however, not been served with the signed order that the Minster intended to deport her with her South African child.  Throughout her time in the State she avidly contacted her local TD who raised her case during a parliamentary debate as she and her family had no idea about what was happening with their case.   After discovering there had been a deportation order made, she continued as required, to attend the Garda National Immigration Bureau who had also seized her passport.  She was certain that she and her daughter would be removed from the State at any stage and such uncertainty caused her family great stress and anxiety.  She is the main carer for her Irish son and her daughter while her husband worked to support the family.  

We welcome the Department’s decision to fully implement the ECJ’s decision in ‘Zambrano’ in granting Applicant’s the right to work and reside in the State on the basis of her citizen child. 

The prospect that families may be forced to separate or leave the State is a very stark choice for many parents of Irish citizen children, but prior to the Zambrano decision, this was an unfortunate reality. We are pleased to be having successes in this area and are working on a number of cases that rely on the Zambrano principles beyond the narrow application to parents of minor Irish citizen children, which we will keep you updated on.

Sarah McCoy, Brophy Solicitors

27.05.11