merrion street

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]

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, inorder for the child to

acquire Irish citizenship.

Children may also apply for naturalisation in their own right in certain

circumstances.