Impact of CJEU Decision: Zambrano & Irish Law

CJEUAs I noted yesterday, the decision of the Court of Justice of the European Union(CJEU) in Zambrano v Office National de l’emploi (ONEm) will have a profound impact on Irish immigration law and practice.  To surmise, the CJEU in Zambrano found that a non-European Union national parent of an EU citizen child has a right not only to reside within an EU member state, but also to be granted a work permit so as to ensure that the EU citizen child can benefit from their rights as an EU citizen. So how will this decision impact on Irish immigration law?

Irish Immigration & Citizenship Law  pre-Zambrano

Citizenship Law in Ireland

Prior to 2005, for a number of historical and other reasons, any child born on the island of Ireland was entitled to Irish citizenship by virtue of the Irish Nationality and Citizenship Acts 1956-2001. In a 1990 case on the rights of non-national parents to remain in Ireland for the benefit of their citizen child, the Supreme Court focused on the right of the citizen child to the care and company of its parents. While the Supreme Court did not find that there was an absolute right for non-national parents to remain in Ireland, ‘grave and substantial reasons’ which impacted on the common good would be needed. (See, Fajujonu v Minister for Justice [1990] 2 IR 151).

While the right to citizenship on the basis of birth on Irish soil was solely a legislative right prior to 1999, with the replacement of the former Article 2 of Bunreacht na hEireann (Constitution of Ireland) and the passage of a new Article 2, which in the section relevant for these purposes stated,

It is the entitlement and birthright of every person born in the island of Ireland, which includes its islands and seas, to be part of the Irish Nation.

Therefore, it was  a constitutional right of any child born on the island of Ireland to gain Irish citizenship. In 2003, a majority of the Irish Supreme Court in the decision of Lobe and Osayende,  held that there was no automatic right for non-national parents of Irish citizens to remain in the state and even though effecting a deportation order against the parents of Irish children may result in the Irish child being removed from Ireland, the state had a right to ensure an orderly and effective immigration and asylum system. McGuinness and Fennelly JJ. (dissent) inter alia relied on the strong Irish constitutional protection of the marital family and the inherent rights of the child in disagreeing with the judgment of the majority.

In 2004, in a subsequent referendum, the Irish people passed a constitutional amendment (to Article 9(2) of the Constitution) which states:

Notwithstanding any other provision of this Constitution, a person born in the island of Ireland, which includes its islands and seas, who does not have, at the time of the birth of that person, at least one parent who is an Irish citizen or entitled to be an Irish citizen is not entitled to Irish citizenship or nationality, unless provided for by law.

The reasons put forward for holding this referendum by the then Minister for Justice, Equality and Law Reform, Mr. Michael McDowell related to the concerns expressed about the numbers of pregnant non-national women arriving in Ireland even after the Lobe and Osayende decision. Many of these women, Mr. McDowell argued, were here to claim asylum. This, he argued, was resulting in pressure  on maternity wards, as well as the possible negative health consequences for those arriving late into their pregnancy. Dr. Siobhán Mullally provides further analysis of this referendum here, in particular noting  the moral panic surrounding the politics of arrival for migrant women within Ireland  at this time. Multiple discriminations on the basis of gender, race, ethnicity and migration status were an underlying issue within this referendum.

The Irish Nationality and Citizenship Act 2004 (which came into force on 1 January 2005) removed the right of Irish citizenship by virtue of birth on the island of Ireland unless at least one parent was an Irish or British citizen or did not have any restriction on a right of residence in the Republic of Ireland or Northern Ireland. (There were some other instances when a child born on the island of Ireland could gain citizenship, but these are not directly relevant to this post).

Irish Born Children and Non-National Parents post Citizenship Referendum

With a citizenship lock now in place, there remained many Irish children whose parents were non-nationals and who did not have a settled immigration status within Ireland. The outcome of the referendum, however, did not result in all non-national parents in this position being deported with their Irish citizen child. The Department of Justice, Equality and Law Reform introduced the IBC/05 scheme. This scheme was a process whereby each non-national parent with a citizen child but without a settled immigration status could apply to the Department of Justice to remain in the State (the latest renewal of this permission took place in 2010). Of the initial 17, 917 applications received, 16, 693 applicants were granted leave to remain for an initial two-year period subject to renewal, while 1,119 applications were refused (figures of cases completed up to end of January 2006, as reproduced in the Bode judgment).

In Bode a number of non-national parents of Irish citizen children were refused leave to remain under the IBC/05 scheme sought to challenge this decision on the basis of the constitutional rights and Article 8 rights of the Irish citizen child to the care and company of their parents in their country of birth. In the High Court decision, Finlay Geoghegan J stated that at a minimum, the Minister for Justice had to consider the rights of the citizen child, in particular her right to be reared and educated within the state of her birth. While this right was not absolute, reasons had to be put forward for the interference in the constitutional and Article 8 rights of the citizen child. However, the Supreme Court overturned this High Court decision. Denham J. for the Supreme Court stated that the IBC/05 scheme was simply an exercise of discretionary executive power of the Minister and issues of constitutional and ECHR rights did not come into play (and would only do so where the Minister for Justice was considering issuing a deportation order). It is important to note that in all the cases mentioned above issues of European Union law were not considered. Therefore, it could be argued that these decisions can be distinguished from the facts and issues in Zambrano. However, the decision in Zambrano is clear. Non national parents of EU citizen children, irregardless of former or current immigration status within an EU member state,  have not only a right to reside within an EU member state, but also must be given provided with the ability to work in this state, so as to support their EU citizen child.

Irish Immigration Law post-Zambrano

For Irish law, the impact of this CJEU decision should not be underestimated. However, its practical effects in relation to the Irish immigration law and policy should not be overstated. Zambrano will not result in ‘floodgates’ of irregular immigrants arriving on Irish shores. The people who may benefit from the application of this decision are limited due to the changes in Irish citizenship law post 2005.  Questions do however remain in relation to the precise impact  Zambrano will have, not only on Irish law, but within the laws of each of the 27 member states: Do the rights of the non-national parent continue to apply after the EU citizen child reaches the age of majority? To what extent will the judgment be applied to a non-marital family? Can a parent who does not have an involvement with the care and upbringing of the EU citizen child rely on the decision in Zambrano? What if an EU citizen child is being cared for and nurtured by a non-national guardian (blood related to the child or otherwise), does this guardian gain rights from the Zambrano decision?  It is likely that these issues (and other related issues) will eventually be determined in future cases before the CJEU. What is clear, is that a persons status as an EU citizen, and the rights which inhere from this, should not be underestimated.

The day the judgment was handed down in Zambrano ,the Irish High Court was hearing submissions on a number of cases regarding the deportation of non-national parents of Irish (and therefore EU) citizens. The decision of the High Court in these cases will be awaited with great interest.

Update, Monday 21 March 2011 @ 17:15: The Minister for Justice, Equality and Defencehas released a statement on the impact of Zambrano in Ireland. The full statement can be accessed here:

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.

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.

Update, Wednesday, 08 June 2011 @ 10:49 a.m.: Minister for Justice and Defence, Alan Shatter T.D. has stated that as of 18 May 2011, 929 persons who previously had no right of residence in Ireland had requested a review of their residency status in light of the Zambrano. 120 of these applicants were granted some form of residency. In addition, there has been an unspecified number of non-EU citizens with some form of legal residency in Ireland who may benefit somewhat from the Zambrano decision. A further 140 people are challenging the issuing of deportation orders and these cases have some form of link to the law as set down in Zambrano.

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.