Children’s Rights to Citizenship, Free Movement and Family Reunification

1. Children’s Rights to Citizenship, Free Movement and Family Reunification Presentation by Hilkka Becker, Senior Solicitor, Immigrant Council of Ireland – Independent Law Centre Children’s Rights under EU Law and Policy in Ireland Children’s Rights Alliance – 13th December 2013

2. Introduction1. Irish citizen children’s right to family life within Ireland?2. Free movement of children within the EU 3. Family reunification provisions?

3. Articles 20 and 21 TFEU – Rights of EU Citizens in their own Member StateArt 20 TFEU (former Art 17 EC):‘1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties.’Art 21(1) TFEU (former Art 18 EC):‘1. Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.’ Article 45 Charter of Fundamental Rights

4. Citizen Children’s Rights to Family Life in Ireland?- the historyFajujonuv Minister for Justice (1989)Lobe and Osayande v MJELR (2003) foreign national parent of an Irish-born child does not have an automatic entitlement to remain in the State with the childBode (A Minor) v MJELR (2007): ‘[t]he 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. [...]. At no stage was it intended that within the ambit of the scheme the Minister would consider, or did the Minister consider, Constitutional or Convention rights of the applicants. [...].’

5. Citizen Children’s Rights to Family Life in Ireland?- before ZambranoDimbo & Oguekwev MJELR (2008): ‘the decision-making process should identify a substantial reason which requires the deportation of a foreign national parent of an Irish born citizen. The test is whether a substantial reason has been identified requiring a deportation order. […]. […] the Minister is required to make a reasonable and proportionate decision.’Alli (A Minor) & Anor v Minister for Justice, Equality & Law Reform[2009] IEHC 595 (2 December 2009)BS v Minister for Justice, Equality and Law Reform[2011] IEHC 417 (13 October 2011)

6. Zambrano v Office national de l’emploi(ONEm)‘(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 the refusal to grant such a person a work permit, […] ‘has the effect of depriving those children of the genuine enjoyment of the substance of the rights attaching to the status of European citizen’.Dereci& Others v BundesministeriumfürInneres Art 20 TFEU will found a right of residence for the TCN family members of Union citizens living in their own Member State where the consequence of the refusal of residence would be that the Union citizens would have to leave the territory of the EU

7. Administrative Implementation of ‘Zambrano’ parents of an Irish born citizen child or children who are awaiting a decision in their case under Section 3 of the Immigration Act 1999 (as amended) parents of an Irish born citizen child or children who have current permission to remain in the State on the basis of Stamp 1, Stamp 2 or Stamp 3 conditions parents of an Irish born citizen child who have been deported or who have left the State on foot of a Deportation Order

8. Irish Case-Law concerning EU Treaty Rights- post ZambranoE. A. & Anor v Minister for Justice & Anor‘Ruiz-Zambrano turns on factors (…) such as dependency, residence in the territory of the Member State in question and the right of European citizens to enjoy one of the real benefits of that citizenship, namely, the right to reside within the territory of the Union’‘no real prospect that the deportation of the applicant would bring about a situation where [the child] would be compelled to leave Ireland or, for that matter, the territory of the Union, (…), there are no grounds for contending that [the father] is entitled to an interlocutory injunction restraining his deportation on Zambrano grounds’ BUT: constitutional right to care and company of the father

9. ‘Citizens Directive’ 2004/38/EC EEA nationals who exercise their EU rights of free movement to move to another Member State of the EU designated TCN family members of EU citizens and other EEA/Swiss nationals exercising their Treaty rights EEA nationals who are returning to their own state after exercising Treaty rights elsewhere in the Union third-country national parents of minor EU citizen children who are nationals of another Member State exercising Treaty rights in a host Member State

10. Zhu and Chen v SSHD (Case C-200/02 – 19 Oct 2004)“where a minor who is a national of another Member State, is in the care of a parent who is a TCN having sufficient resourcesfor that minor not to become a burden on the public finances of the host Member State, that parent, who is the minor’s primary carer, must be permitted to reside with the child in the host Member State”“the conditions under which the child acquired EU citizenship are not relevant for the purpose of assessing the child’s entitlement to the fundamental right of freedom of movement and of residence enshrined in Art 18 EC”

11. Family Reunification?Directive 2003/86/EC  not applicable in Irelandbut see: O. and S. v Maahanmuuttovirasto (C-356/11) and Maahanmuuttovirasto v L. (C-357/11)Article 8 ECHR  any interference with the right to respect for family life must be ‘in accordance with the law’Article 3 of Protocol 4 to the ECHR  ‘no one shall be expelled, (…), from the territory of the State of which he is a national’Article 24 CFR  best interests principle and the right of the child to remain in contact with both parents

12. … in the future? policy document on family reunification“guidelines on all the main issues involved in determining an application for residence in Ireland on the basis of family reunification including eligibility, the concept of sponsorship, dependency, financial resources and personal requirements”(PQ 2 May 2013) Immigration, Residence and Protection Bill 2014

13. THANK YOU!hilkka@immigrantcouncil.ie