Non-EU parents of citizens entitled to residency, court rules

by Carol Coulter, Legal Affairs Editor

IN A ruling with major implications for Irish policy, the European Court of Justice has ruled that the non-EU parents of an EU citizen child must be allowed to live and work in that EU state.

Until 2005 all children born in Ireland were automatically Irish citizens irrespective of the nationality of their parents, though this ceased to be the case following a referendum in 2004. Children born in Ireland to foreign-national parents must now become citizens through naturalisation.

The ruling of the court came yesterday in response to a question on the interpretation of EU law from a Belgian tribunal and is binding on all member states making decisions in similar cases. It states that member states are required to allow third country nationals who are parents of an EU citizen child to live and work in the EU state, where a refusal to do so would deprive the child of the enjoyment of the rights of citizenship.

The case now goes back to the Belgian tribunal for a decision on the specific merits of the case.

The Immigrant Council of Ireland has welcomed the ruling, saying Ireland’s practice of refusing to give some parents of Irish children permission to live and work in this country must now end. Its senior solicitor, Hilkka Becker, said those parents who had already been deported must be allowed to return.

The European court case arose in relation to two Colombian nationals, Mr and Mrs Ruiz Zambrano, who were refused asylum in Belgium. While awaiting a decision on their application the wife gave birth to two children who acquired Belgian nationality.

Though he did not have a work permit, Mr Zambrano worked for a Belgian company, paying tax and social security. As a result, he was able to provide for his family.

However, he became unemployed and applied for unemployment benefits, which were refused because, according to the Belgian authorities, he did not comply with Belgian residence requirements and was not entitled to work there.

The couple applied for Belgian residency as the parents of Belgian citizens but their application was rejected. Mr Zambrano challenged this decision, claiming that as the parent of Belgian children he was entitled to live and work in Belgium.

The Brussels Employment Tribunal, to which the application was brought, asked the European Court of Justice whether he could rely on European Union law, even though in this case the children were not exercising their right of free movement within the EU.

The court ruled that, while a member state has sole jurisdiction to lay down the conditions for the acquisition of citizenship, it was undisputed that the children were of Belgian nationality. They therefore enjoyed the status of citizens of the EU.

It said that EU law 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”. The refusal to grant the parents the right of residency and a work permit amounted to such a deprivation.

The court said it must be assumed that the refusal of residence would lead to a situation where the children would have to leave the territory of the EU, and the refusal of a work permit would lead to a risk of the parents not being able to provide for their citizen children, again forcing them to leave the territory of the union.

In those circumstances, those children would be unable to exercise the substance of the rights conferred on them by virtue of their status as citizens, it said.

The court stated, therefore, that EU law precludes member states from refusing residency and a work permit to third country nationals upon whom minor children who are EU citizens are dependent.

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>Cork couple welcome ruling after months of hiding, The Irish Times, 09 Mar 2011

The Immigrant Council of Ireland is an Atlantic grantee.