The Zambrano case was referred to the ECJ by a Belgian tribunal. Ireland along with a number of other Member States intervened in the proceedings. In summary, the Court ruled that Article 20 of the Treaty on the Functioning of the European Union precludes a Member State from refusing a third country national upon whom his minor children, who are EU citizens, are dependent, a right of residence in the Member State of residence and nationality of those children, and from refusing to grant a work permit to that third country national, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen.
[see attached background note for more detailed explanation of the case]
Ireland’s Approach to Implementing the Judgement
First it is important to state that this judgement applies only where the child is a citizen. It has no implications whatever for Irish Citizenship law. The granting of citizenship remains a matter entirely for the Oireachtas under the Constitution [see background note attached].
Given the importance of the ruling in the Zambrano case, I have decided, with the support of my Government colleagues, to make a brief public statement outlining the consideration being given to cases involving Irish minor dependant citizen children who have a non-national third country parent or parents.
One possible approach in these matters is to wait for pending cases to be determined by the Irish Courts and for the Courts to interpret and apply the Court of Justice ruling. That is an entirely justifiable approach from a legal standpoint. However in this case the Government has agreed that there needs to be a more proactive approach and that it should make a clear statement of its intention to take early action in these cases, insofar as it is unnecessary to await rulings of the Courts. We should not tie up the courts unnecessarily or ask eligible families to wait longer than necessary.
Accordingly I have asked my officials to carry out an urgent examination of all cases before the courts (approximately 120 at present) involving Irish citizen children to which the Zambrano judgment may be relevant.
The Government has agreed with my proposal that early decisions in appropriate cases to which the Zambrano judgement applies be made without waiting for further rulings of the Courts.
I have also asked my officials to examine the cases in the Department in which the possibility of deportation is being considered in order to ascertain the number of cases in which there is an Irish citizen child and to which the Zambrano judgment is relevant. In addition, consideration will be given to those cases of Irish Citizen children who have left the state whose parents were refused permission to remain.
This initiative is being taken in the best interests of the welfare of eligible minor Irish citizen children and to ensure that the taxpayer is not exposed to any unnecessary additional legal costs.
The Zambrano judgment applies EU law to certain situations which had previously been considered to be internal to a Member State and to be regulated by national law, not EU law. Indeed, all the Member State Governments which submitted observations to the European Court of Justice in the Zambrano case, and the European Commission, submitted that the provisions of European Union law referred to by the Belgian court in its reference to the European Court of Justice were not applicable to the dispute in the main proceedings. However, the Court of Justice ruled otherwise.
Other intervenors in the case were Germany, Austria, Denmark, Netherlands, Poland, Greece and the EU Commission. All intervenors including the Commission were in agreement that this was a matter of national competence. The Court did not support this argument. The Court ruled as follows.
"As the Court has stated several times, citizenship of the Union is intended to be the fundamental status of nationals of the Member States.
In those circumstances, Article 20 TFEU 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.
A refusal to grant a right of residence to a third country national with dependent minor children in the Member State where those children are nationals and reside, and also a refusal to grant such a person a work permit, has such an effect.
It must be assumed that such a refusal would lead to a situation where those children, citizens of the Union, would have to leave the territory of the Union in order to accompany their parents. Similarly, if a work permit were not granted to such a person, he would risk not having sufficient resources to provide for himself and his family, which would also result in the children, citizens of the Union, having to leave the territory of the Union. In those circumstances, those citizens of the Union would, as a result, be unable to exercise the substance of the rights conferred on them by virtue of their status as citizens of the Union.
Accordingly, the answer to the questions referred is that Article 20 TFEU is to be interpreted as meaning that it precludes a Member State from refusing a third country national upon whom his minor children, who are European Union citizens, are dependent, a right of residence in the Member State of residence and nationality of those children, and from refusing to grant a work permit to that third country national, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen".
The judgement has no implications in terms of eligibility for Irish citizenship.
Prior to the 2005 Citizenship Referendum, any person born on the island of Ireland was entitled to Irish citizenship. Since the referendum, where a child is born in Ireland to non-national parents, one of those parents must have been lawfully resident in Ireland for 3 out of the previous 4 years, other than as an asylum seeker or a student, in order for the child to acquire Irish citizenship.
Children may also apply for naturalisation in their own right in certain circumstances.
21 March 2011