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- Charles Spurgeon

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22 maart 2011

Ierse reactie op het Zambrano-arrest

Let wel: Ierland heeft een totaal verschillende manier van de onze om nationaliteit te krijgen (ius soli-beginsel, geboorteplaats in plaats van nationaliteit ouders). Dus daar zal een situatie als bij de familie Zambrano veel meer voor kunnen komen.

Statement by Minister for Justice, Equality and Defence, Mr Alan Shatter, TD, on the implications of the recent ruling of the Court of Justice of the European Union in the case of Ruiz Zambrano
Background

The Zambrano case was referred to the ECJ by a Belgian tribunal. Ireland
along with a number of other Member States intervened in the proceedings.
In summary, the Court ruled that Article 20 of the Treaty on the
Functioning of the European Union precludes a Member State from refusing a
third country national upon whom his minor children, who are EU 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.

[see attached background note for more detailed explanation of the case]

Ireland’s Approach to Implementing the Judgement

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 [see background note attached].

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.

Background information

The Zambrano judgment applies EU law to certain situations which had
previously been considered to be internal to a Member State and to be
regulated by national law, not EU law. Indeed, all the Member State
Governments which submitted observations to the European Court of Justice
in the Zambrano case, and the European Commission, submitted that the
provisions of European Union law referred to by the Belgian court in its
reference to the European Court of Justice were not applicable to the
dispute in the main proceedings. However, the Court of Justice ruled
otherwise.

Other intervenors in the case were Germany, Austria, Denmark, Netherlands,
Poland, Greece and the EU Commission. All intervenors including the
Commission were in agreement that this was a matter of national competence.
The Court did not support this argument. The Court ruled as follows.

“As the Court has stated several times, citizenship of the Union
is intended to be the fundamental status of nationals of the
Member States.

In those circumstances, Article 20 TFEU 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.

A refusal to grant a right of residence to a third country
national with dependent minor children in the Member State where
those children are nationals and reside, and also a refusal to
grant such a person a work permit, has such an effect.

It must be assumed that such a refusal would lead to a situation
where those children, citizens of the Union, would have to leave
the territory of the Union in order to accompany their parents.
Similarly, if a work permit were not granted to such a person, he
would risk not having sufficient resources to provide for himself
and his family, which would also result in the children, citizens
of the Union, having to leave the territory of the Union. In those
circumstances, those citizens of the Union would, as a result, be
unable to exercise the substance of the rights conferred on them
by virtue of their status as citizens of the Union.

Accordingly, the answer to the questions referred is that 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”.

Citizenship

The judgement has no implications in terms of eligibility for Irish
citizenship.

Prior to the 2005 Citizenship Referendum, any person born on the island of
Ireland was entitled to irish citizenship. Since the referendum, where a
child is born in Ireland to non-national parents, one of those parents must
have been lawfully resident in Ireland for 3 out of the previous 4 years,
other than as an asylum seeker or a student, inorder for the child to
acquire Irish citizenship.

Children may also apply for naturalisation in their own right in certain
circumstances.

Bron: http://www.merrionstreet.ie/index.php/2011/03/statement-by-minister-for-justice-equality-and-defence-mr-alan-shatter-td-on-the-implications-of-the-recent-ruling-of-the-court-of-justice-of-the-european-union-in-the-case-of-ruiz-zambrano/?cat=12


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