PILA is delighted to welcome this guest piece by Hilkka Becker, Senior Solicitor at the Immigrant Council of Ireland ("ICI") to update readers on topical EU judgments on citizenship and rights of residence.
The ICI is an independent law centre and human rights organisation which advocates for the rights of migrants and families and acts as a catalyst for public debate and policy change.
Hilkka is a fully qualified lawyer in both Ireland and Germany. She is a graduate of law of the University of Hamburg, has a post graduate diploma in employment law from UCD and a Certificate in Judicial Review from the Law Society of Ireland. She was admitted to the roll of solicitors by the Law Society of Ireland in 2003. Hilkka is a member of the European Immigration Lawyers' Network, the Law Society Human Rights Committee and the Dublin Solicitors' Bar Association Civil Litigation Committee.
On 8th March 2011, the Court of Justice of the European Union (CJEU) delivered its judgment in the case Zambrano v Office national de l'emploi (ONEm) stating that "Article 20 of the Treaty on the Functioning of the European Union (TFEU) must be interpreted as meaning that it precludes a Member State from refusing a third country national upon whom his minor children, who are European 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 citizen".
The Zambrano case concerned a Colombian couple and their two Belgian citizen children who had not exercised their right to free movement within the EU but were relying on their EU citizenship in a purely internal situation. In its judgment in the Zambrano case the CJEU sets out that the Treaty precludes national measures which have the effect of depriving EU citizens of a genuine enjoyment of the substance of the rights conferred by virtue of their status as EU citizens. The Court held that "(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 the refusal to grant such a person a work permit, has such an effect".
Accordingly, the rights of EU citizen children derive directly from Article 20 TFEU on citizenship of the Union. For Irish citizen children living in Ireland these rights clearly include: the right to live in Ireland; the right for the children's third country national parents to live in Ireland with them as this is necessary for the children to enjoy their rights as citizens of the Union; and the right to a work permit for the third country national parents to support the children. These rights for third country national parents are based on the principle that the dependent minor EU citizen child could be forced to leave the territory of the EU in order to remain in the care and company of his or her parents if the parents were not allowed to reside and work in the country of nationality of the child and to support the child there. In Ireland this means effectively that parents of Irish citizen children, no matter what their nationality or immigration status, must be given the right to live and work in Ireland for as long as the children are minors and remain dependent on them.
However, a number of questions remain unanswered by the judgment of the CJEU.
For example, when is a child not a dependent minor child? In the case of Teixeira v. Lambeth London Borough Council the Court, in interpreting Article 12 of Regulation 1612/68 (EU regulation on workers), found for the purposes of that provision, according to which a child is defined as dependent and under 21 for the purposes of education rights, that denying the right after the child passed the upper age limit would deprive the right of its force and that even adult children may need the presence of their parents to successfully access their education rights.
In fact, the Court held in Teixeira that access to social welfare benefits for the parent was consistent with caring for an adult child in education. The Court held in this regard that "the right of residence in the host Member State of the parent who is the primary carer of a child exercising the right to pursue his or her education in accordance with Article 12 of Regulation No 1612/68 is not conditional on that parent having sufficient resources not to become a burden on the social assistance system of that Member State during the period of residence and having comprehensive sickness insurance cover there". This line of argument could be applied by analogy in Zambrano-type cases currently pending before the High Court here in Ireland.
Another question, namely if the logic followed by the CJEU in Zambrano also applies to third country national spouses and other family members of EU citizens who reside in their own country of nationality and who do not come within the remit of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, seems to have been answered - at least in part - by the CJEU in the case of McCarthy v. SSHD in its judgment of 5th May 2011.
Firstly, the Court confirmed that "Article 3(1) of Directive 2004/38 is to be interpreted as meaning that that directive 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" (para. 43). As a consequence, Mrs McCarthy, a person with dual Irish and UK nationality who has resided in the UK for her entire life was deemed not to be a 'beneficiary' within the meaning of Article 3 of Directive 2004/38/EC. This conclusion seems logical.
In contrasting McCarthy with Zambrano, the Court held that "by contrast with the case of (...) Zambrano, the national measure at issue in the main proceedings in the present case does not have the effect of obliging Mrs McCarthy to leave the territory of the European Union. Indeed, as is clear from paragraph 29 of the present judgment, Mrs McCarthy enjoys, under a principle of international law, an unconditional right of residence in the United Kingdom since she is a national of the United Kingdom" (para. 50). This assessment seems slightly puzzling in light of the fact that the challenge brought by Mrs McCarthy was based on the fact that her husband, a Jamaican national, had not been given permission to reside with her in the UK and as she was not a person who - as a 'free mover' could reside with him elsewhere in the EU while exercising her own free movement rights.
However, the Court's conclusion that "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" (para. 56) should allow room for arguing that where a Union citizen is unable to live in her own country of nationality together with her third country national family members, particularly where she is unable to exercise free movement rights, she would in fact be deprived of her genuine enjoyment of the substance of her rights as a Union citizen.
The Court does not seem to have given much consideration to this in McCarthy. Future legal challenges at national and EU level may be necessary to clarify the extent to which the TFEU protects the family life of EU citizens who do not come within the scope of Directive 2004/38/EC.