The right to reside for the non-EEA parent of an EU Child

We are working on a number of applications for residence permission for the  non EEEA parent of an EU child resident in the State.

In one particular case, our client is the father and the sole carer of his EU citizen child since the mother returned to home country,  having previously been employed in Ireland.
We submitted an application to the Minister asserting that our client  acquired a derivative right of residence based on his child’s rights under Article 20 of the Treaty of the Functioning of the EU, relying particularly on the Chen judgment, (as the father was working and financially self sufficient while in employment), and also on the case of LB Harrow v Ibrahim C‑310/08 and Teixeira v London Borough of Lambeth and Secretary of State C-480-08, where the European Court of Justice found that, following Case C‑413/99 Baumbast and R [2002] ECR I‑7091, a union child’s right to reside and enter education was independent of that child’s parents status, regardless of whether the parent who is a citizen of the union or not, or has ceased to be a migrant worker in the host state. The child’s rights derived directly from the Treaty. A refusal to allow the primary carer parent to reside during the children’s education would deprive the children of their Treaty rights.

On sufficient resources, the Court of Justice indicated as follows;

“in circumstances such as those of the main proceedings, the children of a national of a Member State who works or has worked in the host Member State and the parent who is their primary carer can claim a right of residence in the latter State on the sole basis of Article 12 of Regulation No 1612/68, without such a right being conditional on their having sufficient resources and comprehensive sickness insurance cover in that State.”

The UK position is that Ibrahim and Teixeira parents in the UK are fully entitled to work.  Under the Social Security (Persons from Abroad) Amendment Regulations 2006, they also have a 'right to reside' for the purpose of claiming benefits.   The right to reside based on the Ibrahim/Teixeira cases is now enshrined in the new Immigration (European Economic Area) (Amendment) Regulations 2012 and is not subject to any conditions such as an inability to work or claim benefits.

The Department of Justice have taken a different approach. In the above mentioned case, it has been determined that the Ibrahim and Teixeira cases do apply to our client’s situation and that a right of residence has been established. However, the Minister has granted our client a restricted stamp 3 residence permission (usually issued to dependents), which prohibits our client from working or accessing welfare. As a result, he has lost his job, and is now unable to support himself and his son, and instructs he will have no option but to return to Pakistan with his son.

We believe that the prohibition against work/access to welfare for the sole carer of an EU child who is established in the education systym is at odds with the Ibrahim and Teixera cases, ( both applicants in those cases were welfare dependent), and therefore in breach of EU law. We will keep you updated on developments in this area of EU Free Movement law.

Brophy Solicitors

28.08.12

One to Watch! Right to Reside in a Member State

Advocate General Verica Trstenjak last week issued her opinion in the case of Yoshikazu Lida v Stadt Ulm. Relying on the Charter of Fundament Rights, the Advocate General found that EU law can confer a right of residence on a third-country national parent, where that parent has custody rights and where his child has moved with the other parent to another Member State.

In this case, Mr Lida, a Japanese national, married and had a child with a German national. From 2005, the family resided in Germany where Mr Lida was granted a residence permit on the basis of his marriage to an EU national. In 2008, Mr Lida’s wife and child moved to Austria and the couple separated.

The issue then arose as to whether Mr Lida retained an entitlement to a right to reside in Germany on the basis of his status as a family member of an EU national. The German authorities refused his initial application to reside. The German court subsequently referred the case and asked the Court of Justice whether under EU law, a parent with a right of custody but who is a third-country national, has a right to reside in the EU Member State that is the origin of his child (who is an EU citizen), so as to maintain regular parental contact with that child, who has exercised free movement and resides in another EU Member State.

AG Trstenjak found that neither the Free Movement Directive nor the caselaw of the Court of Justice confers any such right of residence on the third-country national.

However, the Advocate General then considered the protections of the Charter of Fundamental Rights. The Charter protects the right of the child to maintain a personal relationship and direct contact with both parents and to respect for family life. If the third-country national parent was denied the right to reside, this may potentially deter his child from further exercising her right to free movement as an EU citizen and therefore be contrary to EU law. The extent to which such free movement would be deterred falls to the local court to determine.

The reliance here on the Charter of Fundamental Rights is of note and suggests that the now binding Charter may ground expanded free movement protections for third-country nationals within the EU, particularly with respect of family life. We will await with interest the Court’s ultimate determination and will keep you updated.

The full opinion is available here. 

An update on the opinion by PILA is available here. 

Brophy Solicitors 13.06.12

ONE TO WATCH! PRELIMINARY REFERENCE ON THE RESIDENCE RIGHTS OF PARENTS

The Upper Tribunal in the UK made a preliminary reference last week to the Court of Justice of the European Union on the rights of residence of parents with children over 21 years who they are caring for. 

In Alarape and anr (Article 12, EC Reg 1612/68) Nigeria [2011] UKUT 00413(IAC) (AIRE Centre intervening)  the Tribunal held that the term "child" in Article 12 of Regulation (EEC No.1612/68  (now Article 10 Regulation (EU) No. 492/2011) which guarantees a right of access to education - should be interpreted to include "stepchild".

The Tribunal also referred a series of questions to the Court of Justice of the European Union, including:

1.     For a parent to qualify as a “primary carer” so as to derive a right of residence from a child over 21 exercising a right of access to education under Article 12 Regulation No. 1612/68 [see now Article 10 Regulation (EU) No. 492/2011], is it necessary for that child to be (i) dependent on such a parent; (ii) residing in that parent’s household; and (iii) receiving emotional support from that parent?  

2.     If in order to qualify for such a derived right of residence it is unnecessary for a parent to show that all three of the above circumstances obtain, is it sufficient to show that only one obtains or that only two obtain?

3.     In relation to (ii) above, can there continue to be residence on the part of an adult student child in a common household with his parent(s) even when the former is living away from home for the duration of his studies (save for holidays and occasional weekends)?

4.     In relation to (iii) above, is it necessary for the emotional support provided by the parent to be of a particular quality (viz. close or physically proximate) or is it sufficient if it consists in a normal emotional tie between a parent and an adult child?

5.     Where a person has held an EU right of residence under Article 12 of Regulation No. 1612/68 [see now Article 10 Regulation (EU) No. 492/2011] for a continuous period of more than five years, does such residence qualify for the purposes of acquiring a right of permanent residence under Chapter IV of Directive 2004/38/EC (the Citizens Directive) on “Right of Permanent Residence) and being issued with a residence card under Article 19 of the same Directive?

While it is likely to be some time before the Court provides guidance on the above questions, such clarification will be helpful in ascertaining to what extent applicants can derive a right of residence arising from their relationship with their children, irrespective of the fact that they are no longer minor children. Our current experience is that the Department is reluctant to take into account a relationship between a parent and an adult child, even where emotional ties and dependencies are evidenced. A parent, relying on EU Treaty Rights, will ordinarily need to advance independent grounds before the Department to be successful in retaining their right to reside.

We will keep you updated on the progress of this reference and look forward to hearing any comments you might have.

Brophy Solicitors

18.10.11

RESIDENCE RIGHTS FOR DEPENDANT PARENTS OF ADULT CITIZENS OFTHE STATE

There has been some media attention in Australia regarding the compelling story of Mrs Jefferson, the 96-year-old  British citizen, who was refused permission to reside in Australian on the basis of dependency on her Australian citizen family members. A  Deportation Order is thus threatened against her. Mrs Jefferson’s age, medical circumstances and her strong family connections to Australia, including Australian great grandchildren, made for a very strong case for residence on the basis of dependency. Furthermore, the family are fully financially self sufficient and posed no risks of financial burden on the Australian State. Despite these many factors in her favour, last week the Australian Immigration Department refused her pending Contributory Parent Visa. This type of visa allows parents to join their children in Australia provided they can support themselves. The decision has caused much controversy in the Australian media, and the Immigration Minister, Mr Chris Bowan, has made public statements to indicated that his Department would work towards finding an avenue which might allow Mrs Jefferson to stay with her family in Australia. 

It would seem to any reasonable person that the facts of Mrs Jefferson’s case are so compelling that permission to reside should have been automatic. However, this has not been the case in respect of the Australian Immigration rules, which are notoriously restrictive. By way of comparison, the UK Immigration Rules explicitly provide for “indefinite leave to enter and remain” for persons in Mrs Jefferson’s situation, i.e. those who are over the age of 65, are wholly or mainly dependant on the British citizen, financially self sufficient and without close relatives in home country for support. 

By way of further comparison, the Irish State’s current position in respect of the right to reside for dependant parents of Irish citizens is restrictive in the extreme – there is no visa or residence permission in existence for dependant parents of Irish citizens because the State argues that such right does not exist. This point is the subject of High Court proceedings taken by Brophy Solicitors on behalf of a South African elderly married couple, dependant on their Irish citizen daughter and family. The family are in a good financial position, and as in Mrs Jefferson’s case, there is no risk of our clients becoming a burden on the State. We strongly believe that the Department of Justice’s continued refusal to grant this couple a right to reside is out of line with International Immigration  law and policies, and in disregard of the special protections afforded by the Irish Constitution to the family unit.  The substantive High Court hearing of this case is scheduled for October next. 

15.8.11

Brophy Solicitors

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