‘Invisible EU Migrants’ - Training Seminar for NGOs and Legal Practitioners

Brussels, Thursday, 9th July 2015

Presentation by: Hilkka Becker Consultant SolicitorImmigrant Council of Ireland

The Rights of Zambrano Parents in Ireland

Overview

• Introduction to the Immigrant Council of Ireland

• Situation of Parents of Irish citizen children pre-Zambrano

• Impact of the Zambrano judgment in Ireland

• Development of Irish case-law since Zambrano

The Immigrant Councilof Ireland…

• established in 2001• non-governmental organisation• charitable status• legal service provision• information/referral • racist incidents reporting/referral service• Independent Law Centre since 2006• lobbying/policy and research• education and training P

icture

…and it’s public interest litigation strategy

• Case Selection Criteria:

• strategic importance of the case• merits of the case• availability of other services• vulnerability of the client• financial means of the client• timing of referral• capacity

Right to Family Life of Irish National Childrenin their country of nationality… pre-Zambrano

Fajujonu v Minister for Justice [1987] IEHC 2: “(…) whereas the parents who are not citizens and who are aliens cannot, by reason of their having as members of their family children born in Ireland who are citizens, claim any constitutional right of a particular kind to remain in Ireland, they are entitled to assert a choice of residence on behalf of their infant children, in the interest of those infant children.”any reason justifying the removal from the State of the Fajujonu family, three of whom were Irish

citizens, would have to be “grave and substantial” and “associated with the common good” general policy under which parents of Irish citizen children were usually granted permission to remain

in the State

Lobe and Osayande v MJELR [2003] IESC 3: power to deport non-Irish parents of Irish children where there are grave and substantial reasons

associated with the common good to do so, even if Irish children are removed from the State as a consequence

take into account factors such as the length of time the family had residence in the State, the effectiveness of the immigration laws of the State and the provisions of the Dublin Convention

IBC/05 Scheme Suspension of Policy following judgment in Lobe & Osayande

Notifications of intention to deport issued parents who had no legal basis for remaining in the State other than their Irish citizen child(ren)

up to 700 notifications issued by late 200337 parents deported by late 2004

IBC/05 Scheme – January to March 200517,917 applications received 16,693 applicants given leave to remain1,119 applications refused(based on cases completed by 31st January, 2006)

Bode & Ors v MJELR & Ors [2006] IEHC 341:“(…) IBC 05 Scheme was a scheme established by the Minister, exercising executive

power, to deal administratively with a unique group of foreign nationals in a generous manner, on general principles. The parameters of the scheme were set out clearly, (…). The scheme was administered by the Minister within the terms of the scheme”.

“At no stage was it intended that within the ambit of the scheme the Minister would consider, (…), Constitutional or Convention rights of the applicants”.

“The Oireachtas has established a statutory scheme providing that the Minister, in considering the situation of foreign nationals, shall have regard to a wide range of issues when making a decision under s.3 of the Immigration Act, 1999, as amended. Constitutional and Convention rights are appropriately considered at that stage”.

Irish Case- Law pre-Zambrano (contd.)

Oguekwe v MJELR [2008] IESC 25 and Dimbo v MJELR [2008] IESC 26:“(…) decision making process should identify a substantial reason which requires the deportation of a foreign national parent of an Irish born citizen. (…) required to make a reasonable and proportionate decision”.

Alli v MJELR [2009] IEHC 595: “(..) the Court has concluded that the Minister did not err in law in asking the question whether there were any ‘insurmountable obstacles’ to the family moving (..) to Nigeria and continuing family life there (..). The posing of that question is well established in the ECtHR jurisprudence on Article 8 (..). An evaluation of whether there are any insurmountable obstacles to the family moving with the deportee incorporates an evaluation of the reasonableness of expecting that family to move”.

So, what did the CJEU say in Zambrano?

“Article 20 [of the 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 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”. Case C-34/09 Zambrano v Office national de l’emploi (ONEm) [2011] ECR I nyr, 8 th March 2011

DependencyResidenceDeprivation

Practical implementation of the Zambrano decision in Ireland:

My child is an Irish citizen but has not resided in the State at any stage. Does the Zambrano Judgment allow me a right of residence in Ireland?Þ Response : No. The Zambrano Judgment applies to an Irish citizen child’s country of

residence and nationality. If an Irish citizen child has not been ordinarily resident in Ireland then his/her parent(s) cannot rely on the Zambrano Judgment as a basis for securing a right of residence in Ireland.

I am a non-EEA national. I lived in Ireland for some years but left some time ago to return to my country of origin. I left voluntarily and was never the subject of a Deportation Order. I am the parent of an Irish citizen child. Can I rely on the Zambrano Judgment to allow me to reside in Ireland?Þ Response: No. The Zambrano Judgment does not apply to any person who left Ireland

of their own volition. Such persons can, of course, apply for a visitor or study visa to visit Ireland but cannot rely on the Zambrano Judgment as a basis to obtain a right of residence in Ireland.

Source: Irish Naturalisation and Immigration Service http://inis.gov.ie/en/INIS/Pages/WP11000038 [accessed on 3rd July 2015]

Practical implementation of the Zambrano decision in Ireland (contd.):

public policy: the terms of the Zambrano judgment will not be applied to parents of Irish citizen children who have been convicted of serious and/or persistent criminal offences

DNA evidence of a biological link to the Irish citizen child or children may also be required

Source: Irish Naturalisation and Immigration Service http://inis.gov.ie/en/INIS/Pages/WP11000037 [accessed on 3rd July 2015]

Case-law on the Rights of Parents of Irish citizen children – post Zambrano

Mr Alli was offered the right to return from Nigeria…

E.A. & Anor v Minister for Justice & Anor [2012] IEHC 371: “Ruiz-Zambrano turns on factors (…) such as dependency, residence in the territory of the MS in question and the right of EU citizens to enjoy one of the real benefits of that citizenship, namely, the right to reside within the territory of the Union” “(…), there was ‘no real prospect that the deportation of the [father] would bring about a situation where [the child] would be compelled to leave Ireland or, for that matter, the territory of the Union. In those circumstances, there are no grounds for contending that [the father] is entitled to an interlocutory injunction restraining his deportation on Zambrano grounds”.

BUT: “The court must, (…), approach this application not from the perspective of the father, but rather from that of the child. It must accordingly seek to ensure, where possible, that the substance of the constitutional right of the child as guaranteed by Article 42.1 to the care and company of his parents is protected. In the present case, were Mr. A. to be deported, the likelihood is that the child would have no further personal contact with him during his minority, thus depriving the child of the essence of that constitutional right” .

Case-law on the Rights of Parents of Irish citizen children – post Zambrano (contd.)

Gilani & Anor v Minister for Justice & Equality [2012] IEHC 193:“(…) the principle or interpretation expounded by the [CJEU] in the Ruiz Zambrano case confers no right or entitlement upon the father as a non-EU citizen”.

Smith & Ors v Minister for Justice & Equality & Ors [2012] IEHC 113:“This is a case where there has been repeated abuse (…) of the immigration laws of the State and the laws of another Member State. He left the State illegally while present as an asylum seeker. He illegally went to the UK and was engaged in criminal activity for which he was convicted. Having been deported from the UK and the territory of the EU, he re-entered that territory illegally. Following the making of a deportation order he evaded it and again re-entered the UK illegally. When applying for permission to remain on foot of the Zambrano judgment, he lied about his whereabouts and movements. This history of disregard for the law would, in the judgment of the Court, be ample ground for refusing the application (…)”.

(see also: [2013] IESC 4 – unsuccessful appeal against IEHC refusal to grant leave)

Automatic Right of Residence?M.Y. & Ors v Minister for Justice, Equality and Law Reform & Ors [2015] IEHC 7:“Any suggestion that EU law confers automatic rights of residence (whether retrospectively or prospectively) on the parents of EU citizen children is misconceived.”

“The ECJ was asked whether Mr Zambrano was exempt from the work permit rules. I interpret the answer given as meaning that no such exemption is automatically created by EU law but there are circumstances where such effect may be found. It was left to the national court to decide whether the denial of unemployment assistance to Mr Zambrano would have the effect of depriving his EU national children of the right to remain in the EU”.

Problem Solved?

Some of the issues remaining:

acquisition of ‘Zambrano right’? revisiting M.Y. & Ors? exclusion based on criminality definition of ‘dependency’ exclusion based on residency requirement? burden of proof in establishing entitlement to EU nationality

DISCUSSION?

THANK YOU

Contact: Hilkka Becker, Consultant Solicitor/Legal Experthilkka@immigrantcouncil.ie hbecker@migrationlawconsultancy.com