Ireland’s High Court has ruled that the right to reside includes the right to work, where residency is granted to parents of EU citizens. Barr J. delivered the judgment in O.A. and O.P.A. v. Minister for Justice, Equality and Defence on 30 July 2014, relying on EU directives and case law.
The applicants, a Kenyan national and her daughter who was a German citizen by descent through her father, challenged a decision by the Minister for Justice that the mother was not entitled to apply for Stamp 4 residency under EU Law, which would have allowed her to work. Her application would only be accepted for Stamp 3 residency, the right to reside only.
In the Court of Justice of the European Union (CJEU) case of Zhu and Chen v. Secretary for the Home Department [2004], the CJEU ruled that minor EU citizens have a right to freedom of movement. In order to fully enjoy this right, it encompasses an ancillary right of residence in the host Member States for the minor’s primary carer.
In the current High Court case, the applicant claimed that right of residence should include the right to work, so that she would meet the criteria for residency. To qualify for Stamp 4, the applicant needed to satisfy Article 7(1)(b) of Directive 2004/38 which requires that she would have sufficient resources so that she would not become an ‘unreasonable’ burden on the social assistance system of the host Member State. The Irish authorities took this ‘sufficient resources’ requirement as requiring applicants for residency to have the sufficient resources at the time of their application, which was found by the High Court to be too restrictive. In making this finding, the High Court relied on the CJEU Alokpa case, wherein the CJEU preferred a broader interpretation of this provision and they stated that there is no requirement as to the origin of the resources. The resources did not have to be available at the time of the application. Thus the High Court held that future resources could be taken into account and the right to work for the primary carer would facilitate reaching those requirements, in the interest of saving public finances.
The High Court found that implicit in the Chen right is the right of the primary carer to work in the host country. It quashed the decision of the Minister to refuse the applicant’s application for Stamp 4 residency. The applicant was then free to reapply for the residency and the Court held that the Minister must have regard to the definite prospect of future resources, such as those stemming from an offer of employment, when considering the ‘sufficient resources’ requirement.
Click here to read the judgment O.A. and O.P.A. v. Minister for Justice, Equality and Defence [2014] IEHC 384.