The Grand Chamber of the Court of Justice of the European Union(CJEU) has today issued its judgment in Zambrano v Office National de l’emploi (ONEm). This case revolved around the right of a Columbian man (and by implication his wife) to be granted permission to reside in Belgium and for Mr. Zambrano to be granted a work permit on the basis that two of their three children were Belgian nationals, and therefore EU citizens.
Background
The Columbian applicant (and his wife) had on a number of occasions been refused refugee status in Belgium. Due to the on-going civil war, the Belgian authorities had also decided that they could not be sent back to Columbia. Various proceedings continued in the Belgian courts for a number of years on the refugee determination decision. During this time, Mr. Zambrano became father to two children and was in gainful employment (until this employment was ultimately terminated in October 2006 due to immigration investigations). Rather than applying to the Columbian authorities to have their children recognised as Columbian citizens (as such citizenship did not inhere in the children automatically but required parents to take specific steps to have them recognised as such), the two children gained Belgian citizenship. This was due to a provision of Belgian nationality law, which at the time stated that any child born in Belgium, who had not reached the age of majority and who would otherwise be stateless, will be Belgian.
Mr. Zambrano then applied to the National Employment Office (ONEm) for an unemployment benefit, which was refused as he had not completed the necessary social contribution time period to the unemployment fund which was in place for non-EU workers. Mr. Zambrano however argued that by virtue of EU law he enjoyed a derived right of residence due to being the father of EU citizens and should have been exempt from the obligation to hold a work permit.
Issues of EU Law
The basic question which the Employment Tribunal Brussels asked the CJEU to consider was whether by virtue of the Treaty on the Functioning of the European Union confers on non-EU national parents a right to reside within the EU with their EU citizen children. If this was so, does it also mean that Mr. Zambrano does not have to obtain a work permit in Belgium.
The European Commission, Belgium and a number of other EU Member States argued that since Mr. Zambranc’s children never exercised their free movement rights under EU law, the issue is not relevant to the proceedings in the national court. This argument must have been made in reference to Article 3(1) of the Citizens Directive, which states:
This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members [defined as a spouse, those in registered partnerships recognised by both Member States; direct descendents under 21 and dependent direct relatives in the ascending link]
Judgment
The CJEU held that the Citizens Directive was not applicable in this case , the EU citizen children did not exercise their free movement rights in another Member State. (While reference was made in arguments on the EU Charter of Fundamental Rights (EUCFR), this did not form any part of the decision). The CJEU went on to recognise that citizenship of the EU is “intended to be the fundamental status of nationals of the Member States”. Article 20 (1) TFEU states:
Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.
Article 20 TFEU precluded measures which sought to deprive EU citizens of the enjoyment of their substantive rights under EU law. Were Mr. Zambrano (and by implication his wife) forced to leave Belgian territory, or not granted a work permit so as to support his EU citizen children, the end result would be citizens of the EU unable to exercise substantive rights conferred upon them as citizens of the Union. The CJEU continued:
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.
Analysis
This is the most far-reaching decision on issues of citizenship that the CJEU has ever made. It touches upon states rights to deport non-EU migrants who have children who are citizens of the European Union . This decision shows an even more progressive interpretation to EU citizenship and residency law than set down in Chen & Ors. v Secretary of State for the Home Department [2004] ECR I-9925 . Chen revolved around the right of Mrs. Chen, a Chinese national, and her daughter, Catherine, an Irish national, to a long-term residence permit in the United Kingdom. Mrs. Chen had given birth to her child in Belfast so that she would obtain Irish nationality. The Court of Justice relied on Article 21TFEU (and Directive 90/364/EEC of 28 June 1990 on the right of residence -now repealed) in finding that Catherine, who has Union citizenship, who is in the care of her third country national parent, and who has adequate sickness insurance and will not become a burden on the public finances of the UK, has a right to reside in the UK for an indefinite period. The right of citizens to move and reside is contained within the Union is contained within Article 21(1)TFEU, which is directly effective. The CJEU also rejected the argument that Mrs. Chen had improperly ‘exploited’ provisions of EU law. The CJEU stated that since it was for individual Member States to lay down conditions for acquisition of citizenship, it would not intervene in examining the reasons behind that grant.
In Zambrano the CJEU no longer linked issues relating to EU citizenship law, with the exercise of free movement to another EU state. By virtue of one’s EU citizenship, there exists a right for a non-EU national parent to not only reside in a state with their citizen child/children, but also to be granted a work permit to ensure subsistence. The impact of this judgment to Irish law is enormous. In the coming days, I will provide analysis of the impact of this judgment on current Irish immigration law, in particular focusing on the Bode judgement. However, one thing is clear, this judgment will have a profound effect on immigration laws in all Member States.
Update: For an analysis of the impact of this decision on Irish law, see my post here.
N.B. I cannot answer via the comments or by email any legal questions which people may have on how Zambrano will impact on them personally. Those who feel they may be effected by this issue should get professional legal advice.
Liam Thornton 