A HIGH Court judge has said a judicial conference should be convened to discuss the implications of a European court ruling this week that could herald a “new era” for cases involving the parents of Irish citizen children.
Judge John Cooke also urged the Government to take a formal position on the Zambrano judgment as soon as possible to provide clarity on a large number of judicial reviews involving the parents of Irish citizen children.
The European Court of Justice ruled on Tuesday that the non-European Union parents of an EU citizen child must be allowed to live and work in that EU state, where a refusal to do so would deprive the child of the enjoyment of the rights of citizenship.
The landmark ruling appears to call into question the Government’s policy of deporting scores of parents of Irish citizen children over the past five years. Twenty Irish citizen children have been forced to leave the country over the past five years following the deportation of their parents. More than 100 judicial reviews seeking leave to appeal against deportation on the basis of being the parent of an Irish citizen child are pending in the High Court.
In a hearing involving a Nigerian father of two Irish citizen children, who is seeking leave to appeal a deportation order, Mr Cooke said yesterday the ruling would need to be discussed by all judges dealing with asylum and the president of the High Court.
He said it is “highly likely” that an Irish case or cases would have to go to the European Court of Justice to provide additional clarity on the specific rights of the parents of Irish citizen children.
“One has just begun to consider the implications of Zambrano and there are a number of matters that may require clarification,” he said.
He adjourned the hearing to allow the State to consider the ruling. The hearing involved a Nigerian father of two Irish citizen children, who argued the decision to deport him was “irrational and unlawful” because it relied on the assumption his family could migrate to Nigeria with him to preserve the unit of the family.
Counsel for the applicant told Judge Cooke the Zambrano case was directly applicable to his client’s case. Counsel for the State said his instructions were to apply to adjourn the matter as the Zambrano judgment would have to be looked at at a high level within the Department of Justice.
Judge Cooke, who is one of the main judges hearing asylum cases in the High Court, said the Zambrano judgment was very significant and it would be wholly unreasonable not to allow the State time to consider the ruling. He said the sooner the State took a formal position on the ruling the better.
He said clarification may be required from the European court over when exactly the rights to residency in an EU state came into force. He said many of the cases pending in the High Court originated before article 20 of the EU treaties came into force with the Lisbon Treaty and questioned whether these would be covered by the Zambrano judgment.
He said the European court may have to clarify whether the State can refuse residency to parents on the basis they entered the State illegally; and whether the right of residency applies when one parent has residency and the other faces deportation.
Bron: http://www.irishtimes.com/newspaper/ireland/2011/0310/1224291779017.html
(Danish) Immigration minister: EU rulings not an obstacle
Monday, 21 March 2011 22:15 DV News .Last year Denmark only granted 900 residence permits based on EU rulings
The number of people granted residency in Denmark based on a series of EU immigration rulings is so low that a clash with the European Court of Justice is unnecessary, says Søren Pind, the immigration minister.
Pind’s comments come after he pledged last week to look into how much of a threat European regulations pose to the government’s immigration policy.
According to the study 900 out of a total 59,000 residence permits issued last year were granted based on EU rulings.
“I don’t think it’s in any way fair to say that the previous legislation has undermined Danish legislation. I find it hard to see the problem,” Pind told Politiken newspaper.
The Danish People’s Party (DF), however, still sees the problem.
“We want to be the master of our own house, and clearly we’re not when Søren Pind and the government say that we should just accept the rulings,” said DF’s deputy leader Peter Skaarup, who expects that the points system for family reunification will be adjusted so that the recent EU rulings will not become shortcuts to residency.
Pind believes Denmark should follow the new recent Zambrano ruling, which grants residence to a parent from a non-EU country if the child has Danish citizenship.
“Of course we follow EU rulings, and so we should also follow this particular one,” said Pind.
This ruling will have far greater consequences than the disputed Metock ruling from 2008, reckons EU expert Peter Starup of the University of Southern Denmark.
“We should expect that the Zambrano ruling will lead to a great increase in residency permits. Metock was of little significance – it was just blown up by the media. Zambrano, on the other hand, will prove to be highly significant over the next many years.”
Bron: http://www.cphpost.dk/news/making-the-cut/200-making-the-cut/51246-immigration-minister-eu-rulings-not-an-obstacle.html
Benfits and immigrants: Keeping the coffers shut
.NOTORIOUSLY sceptical about the merits of both immigration and the European Union, Britons have worried for decades about “benefit tourism”. They are just about prepared to accept large numbers of people coming to Britain to work, but suggest that some are coming to tap into the British welfare state and the talk gets nasty. The fact that migrant workers from the eight countries which joined the EU in 2004 are now poised to get full access to British benefits when transition arrangements expire at the end of April is already making headlines. So an important decision by the Supreme Court this week pleased those who feared that the state coffers were about to be opened wider for EU migrants who haven’t worked here, too.
The case concerned Galina Patmalniece, now 72, who came to Britain in 2000 after retiring from 40 years work in Latvia’s factories and kitchens. Russian-born, she initially sought asylum on the grounds that she faced persecution if she returned to Latvia. She was eventually denied it, and in 2004 her country joined the EU.
As an EU national, and with only a Latvian state pension of as little as £50 (depending on the exchange rate) a month to live on, Miss Patmalniece then applied for means-tested state pension credit. At current levels this can top up a single pensioner’s income to almost £133 a week. Denied the pension credit (though, separately, she did get council housing), she appealed. Her case wended its way through the system. In June 2009 the Court of Appeal said the government was entitled to withhold the benefit. On March 16th, by a four-to-one majority, the Supreme Court agreed.
The basic issue was whether the conditions Britain imposes for giving out the pension were compatible with a rule of EU law that prohibits discrimination on the grounds of nationality for this sort of benefit. Britain requires recipients to be “habitually resident”, and for most people this involves having the right to reside here. British citizens have that right automatically but most other EU nationals (there is an Irish complication) do not: broadly, they must be able to support themselves.
With no family or work in Britain, and only her Latvian pension, Miss Patmalniece did not legally have the right to reside here, the government held, though it did not seek to deport her. Miss Patmalniece’s lawyers argued that the test discriminated against her directly on the grounds of her nationality. A British citizen who returned to Britain after working for 40 or so years in Latvia would have qualified for the pension credit.
The arguments in the case are fiendishly complex, roaming from Luxembourg to London and featuring an unhealthy enthusiasm for double negatives. At the end of
the day, and relying in part on a 2010 decision of the European Court of Justice (ECJ), the Supreme Court found that the requirement amounted only to indirect discrimination (some EU nationals could get the right to reside, and some British and Irish nationals would fail to pass other bits of the habitual-residence test).
Though EU law frowns on indirect discrimination, it can be justified in some circumstances, and this was one. A majority of the Supreme Court judges reckoned the aim of protecting the public purse from the ravages of benefit tourism was legitimate and the measures to achieve it were objectively applied.
Britain has a problem where EU migrants are concerned. It doesn’t remove people who cannot support themselves, as it is entitled to, but neither is it disposed to give them enough to live on. That is why you get concentrations of semi-employed Poles, say, sleeping rough in empty ground behind billboards in Slough. This does nothing for the Poles and nothing for Slough either. Miss Patmalniece was lucky to get a secure council flat; she was one of the last in her circumstances to do so and today, after rule changes, would not qualify.
The Supreme Court decision in her case is not necessarily the end of the matter. The European Commission may decide to take matters forward, perhaps eventually bringing an infringement action against Britain in the ECJ. It has already written to the government expressing unhappiness over its approach in this case, as well as over other restrictions in the access of EU nationals to benefits.
But even if it doesn’t, the whole scene regarding residence and rights seems to be changing rapidly, with the ECJ in the vanguard and the needs of EU citizens increasingly seen as more important than national autonomy. A decision handed down on March 8th, described by one British lawyer as a “bombshell”, is a case in point. It confirmed the right to reside and receive benefits in Belgium of Gerardo Ruiz Zambrano, an unsuccessful Colombian asylum-seeker who, with his Colombian wife, produced two children there. The children became Belgian, hence EU, citizens, and removing the parents on whom they depended amounted to con structive deportation of the mini-citizens themselves, the court held. Expect further upheavals as this precedent begins to affect British courts in unforeseen ways.
Bron: http://www.economist.com/blogs/blighty/2011/03/benfits_and_immigrants
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