ECJ ruling will have 'major implications' - Poll

Morlar

Good decision for Ireland or Bad decision for Ireland >?

08/03/2011 - 15:29:14
A ruling at the European Court of Justice today will have "major implications" for the non-national parents of Irish-born children, it has been claimed.

The court delivered a judgement in a case involving Belgium which precludes any EU member state from refusing residence and the right to work to a person whose child was born in the EU.

Welcoming the ruling, the Immigrant Council of Ireland (ICI) said that parents of Irish-born children who have already been deported from the state must now be allowed to return.

"Put simply, what this means in practice is that Irish children have a right to live with their parents in Ireland and for their parents to work and provide for them within the State," ICI senior solicitor Hilkka Becker said.

"No longer will families be allowed to be separated unless there is a truly exceptional reason.

"The Immigrant Council has worked with many families separated by our immigration rules and suffering real anguish and financial hardship as a result.

"We are delighted with this ruling."

Read more: http://breakingnews.ie/ireland/ecj-ruling-will-have-major-implications-496449.html#ixzz1G1g3mY5b

* * **This only applies to EU Citizens * * *

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62009J0034:EN:HTML

In Case C‑34/09,

REFERENCE for a preliminary ruling under Article 234 EC from the Tribunal du travail de Bruxelles (Belgium), made by decision of 19 December 2008, received at the Court on 26 January 2009, in the proceedings

Gerardo Ruiz Zambrano,

v

Office national de l’emploi (ONEm),

THE COURT (Grand Chamber),

composed of V. Skouris, President, A. Tizzano, J.N. Cunha Rodrigues (Rapporteur), K. Lenaerts, J.-C. Bonichot, Presidents of Chamber, A. Rosas, M. Ilešič, J. Malenovský, U. Lõhmus, E. Levits, A. Ó Caoimh, L. Bay Larsen and M. Berger, Judges,

Advocate General: E. Sharpston,

Registrar: A. Calot Escobar,

having regard to the written procedure and further to the hearing on 26 January 2010,

after considering the observations submitted on behalf of:

– Mr Ruiz Zambrano, by P. Robert, avocat,

– the Belgian Government, by C. Pochet, acting as Agent, assisted by F. Motulsky and K. de Haes, avocats,

– the Danish Government, by B. Weis Fogh, acting as Agent,

– the German Government, by M. Lumma and N. Graf Vitzthum, acting as Agents,

– Ireland, by D. O’Hagan, acting as Agent, assisted by D. Conlan Smyth, Barrister,

– the Greek Government, by S. Vodina, T. Papadopoulou and M. Michelogiannaki, acting as Agents,

– the Netherlands Government, by C. Wissels, M. de Grave and J. Langer, acting as Agents,

– the Austrian Government, by E. Riedl, acting as Agent,

– the Polish Government, by M. Dowgielewicz, and subsequently by M. Szpunar, acting as Agents,

– the European Commission, by D. Maidani and M. Wilderspin, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 30 September 2010,

gives the following

Judgment

1 The reference for a preliminary ruling concerns the interpretation of Articles 12 EC, 17 EC and 18 EC, and also Articles 21, 24 and 34 of the Charter of Fundamental Rights of the European Union (‘the Charter of Fundamental Rights’).

2 That reference was made in the context of proceedings between Mr Ruiz Zambrano, a Columbian national, and the Office national de l’emploi (National Employment Office) (‘ONEm’) concerning the refusal by the latter to grant him unemployment benefits under Belgian legislation.

Legal context

European Union law

3 Article 3(1) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77, and corrigenda OJ 2004 L 229, p. 35, and OJ 2005 L 197, p. 34), provides:

‘This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.’

National law

The Belgian Nationality Code

4 Under Article 10(1) of the Belgian Nationality Code (Moniteur belge, 12 July 1984, p. 10095), in the version applicable at the time of the facts in the main proceedings (‘the Belgian Nationality Code’):

‘Any child born in Belgium who, at any time before reaching the age of 18 or being declared of full age, would be stateless if he or she did not have Belgian nationality, shall be Belgian.’

The Royal Decree of 25 November 1991

5 Article 30 of the Royal Decree of 25 November 1991 (Moniteur belge of 31 December 1991, p. 29888) concerning rules on unemployment provides as follows:

‘In order to be eligible for unemployment benefit, a full-time worker must have completed a qualifying period comprising the following number of working days:

…

2. 468 during the 27 months preceding the claim [for unemployment benefit], if the worker is more than 36 and less than 50 years of age,

…’

6 Article 43(1) of the Royal Decree states:

‘Without prejudice to the previous provisions, a foreign or stateless worker is entitled to unemployment benefit if he or she complies with the legislation relating to aliens and to the employment of foreign workers.

Work undertaken in Belgium is not taken into account unless it complies with the legislation relating to the employment of foreign workers.

…’

7 Under Article 69(1) of the Royal Decree:

‘In order to receive benefits, foreign and stateless unemployed persons must satisfy the legislation concerning aliens and that relating to the employment of foreign labour.’

sbsquarepants

Too cool to care

Ah sure fúck it. We're loaded anyway, plenty to go round!:eek:

Morlar

Too cool to care

Course, where it says 'right to work' that will also mean right to education, healthcare, some sort of accomodation and benefits etc.

Basically an illegal immigrant amnesty. Have a kid you probably can't support and then you can't be deported form europe. I can see no possible downside to this logic.

evercloserunion

Bad decision for Ireland

A completely logical decision. No point giving someone rights and then denying them the possibility of exercising them!

To clarify, because the news story as usually completely ignores the actual legal issues in question in the case, the reasoning behind the decision was that the child, as a citizen of an EU member state, has certain rights under EU law but the child would be unable to enjoy these rights if it was not allowed to reside in the country with its family.

pragmatic1

Then we should pass a law that poor pregnant women cant enter the country unless they're Irish.

Morlar

Too cool to care

pragmatic1 wrote: »

Then we should pass a law that poor pregnant women cant enter the country unless they're Irish.

This is not a 'mothers only' ruling. It's fathers too, (siblings also under the family seperation rules).

drdeadlift

Too cool to care

Doesnt matter where you had the child,send em home.Im not responsible for their poor family planning.

Seaneh

so this would not affect people who's children were born here but who are not entitled to citizenship?

I know two families who live in ireland one on student visas other on volunteer visas who both have kids born in ireland, but their kids are not entitled to citizenship...

Does this ruling affect them?

darkman2

Do we have similar rights if we emigrate to Africa? We are "third world" now apparently so they could see an influx.

evercloserunion

Bad decision for Ireland

Seaneh wrote: »

so this would not affect people who's children were born here but who are not entitled to citizenship?

I know two families who live in ireland one on student visas other on volunteer visas who both have kids born in ireland, but their kids are not entitled to citizenship...

Does this ruling affect them?

The way I read it, it doesn't. The whole point is the protection of the childs' rights which flow from citizenship.

Seaneh

we are still as far from third world as is possible.

Morlar

Too cool to care

Seaneh wrote: »

so this would not affect people who's children were born here but who are not entitled to citizenship?

I know two families who live in ireland one on student visas other on volunteer visas who both have kids born in ireland, but their kids are not entitled to citizenship...

Does this ruling affect them?

* see above

Squirm

I think that for the State this has some negative repurcussions, mainly in the form of increased rights and motivation for individuals who have or will go on to have children within the EU, for the sole purpose of avoiding deportation.

The other side of the story though, are the unaccompanied minors who live across the city and country, often in unacceptable conditions and, are expected to fend for themselves.

It can be argued that people will be costing the country a fortune in social benefits. But it should also be pointed out that unaccompanied minors are receiving residential housing, with staff, management and all the necessary trimmings, to ensure they are adequetely contained and cared for. This is also a very costly practice. An unaccompanied minor is more expensive than an accompanied one, who's lone parent recieves benefits.

Many of the people who will now be granted asylum on the basis of this ruling will be productive members of society.

At the end of the day, it is an unacceptable practice, in my opinion, to deport someone in the knowledge that their children will be left behind, without parental guidance and in the care of the State.

evercloserunion

Bad decision for Ireland

Morlar wrote: »

Yes.

Well that's interesting, because it doesn't accord with the judgement if there are children who can be born in Ireland but who are not citizens.

Certainly the actual judgement states that it applies to children who have citizenship of the EU:

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.

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62009J0034:EN:HTML

I'm inclined to think that this is another example of the media not quite grasping the legal issues at play.

Squirm

(Apologies for spelling mistakes. My touch screen in a friggin' joke when it comes to typing lengthy commentaries on important social and economic issues)

Mena

Morlar wrote: »

Yes.

No it does not, lets not start a panic over nothing.

The actual ruling is:

ECJ wrote:

On those grounds, the Court (Grand Chamber) hereby rules:

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.

Source

Morlar

Too cool to care

evercloserunion wrote: »

Well that's interesting, because it doesn't accord with the judgement if there are children who can be born in Ireland but who are not citizens.

.

The court delivered a judgement in a case involving Belgium which precludes any EU member state from refusing residence and the right to work to a person whose child was born in the EU.

evercloserunion

Bad decision for Ireland

Morlar wrote: »

.

It doesn't matter what the news source says, it matters what the court says. Go back and look at my edited post please.

Morlar

Too cool to care

Mena wrote: »

No it does not, lets not start a panic over nothing.

The actual ruling is:



Source

You seem to be right, that does not seem to tie in with the article however.

prinz

Edit: Saw extract above. Makes more sense now.

seamus

Correct Mena, this only applies where the child is an EU citizen.

Thankfully we closed the loophole for pregnancy tourism a few years back, so this isn't that big a deal for us.

What happens when Paddy the illegal immigrant has had a kid with Mary over in Greece, and Paddy decides to leave them and come to Ireland on his own. He must now be guaranteed residence and the right to work because he has a kid in Greece? Or a woman with a kid in Finland?

From what I understand, the parent(s) only have the right to live in the same state as the child.

evercloserunion

Bad decision for Ireland

Morlar wrote: »

You seem to be right, that does not seem to tie in with the article however.

Irish media is notorious for getting the law wrong, especially when it comes to European law issues.

Morlar

Too cool to care

This does make it more clear :

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62009J0034:EN:HTML

In Case C‑34/09,

REFERENCE for a preliminary ruling under Article 234 EC from the Tribunal du travail de Bruxelles (Belgium), made by decision of 19 December 2008, received at the Court on 26 January 2009, in the proceedings

Gerardo Ruiz Zambrano,

v

Office national de l’emploi (ONEm),

THE COURT (Grand Chamber),

composed of V. Skouris, President, A. Tizzano, J.N. Cunha Rodrigues (Rapporteur), K. Lenaerts, J.-C. Bonichot, Presidents of Chamber, A. Rosas, M. Ilešič, J. Malenovský, U. Lõhmus, E. Levits, A. Ó Caoimh, L. Bay Larsen and M. Berger, Judges,

Advocate General: E. Sharpston,

Registrar: A. Calot Escobar,

having regard to the written procedure and further to the hearing on 26 January 2010,

after considering the observations submitted on behalf of:

– Mr Ruiz Zambrano, by P. Robert, avocat,

– the Belgian Government, by C. Pochet, acting as Agent, assisted by F. Motulsky and K. de Haes, avocats,

– the Danish Government, by B. Weis Fogh, acting as Agent,

– the German Government, by M. Lumma and N. Graf Vitzthum, acting as Agents,

– Ireland, by D. O’Hagan, acting as Agent, assisted by D. Conlan Smyth, Barrister,

– the Greek Government, by S. Vodina, T. Papadopoulou and M. Michelogiannaki, acting as Agents,

– the Netherlands Government, by C. Wissels, M. de Grave and J. Langer, acting as Agents,

– the Austrian Government, by E. Riedl, acting as Agent,

– the Polish Government, by M. Dowgielewicz, and subsequently by M. Szpunar, acting as Agents,

– the European Commission, by D. Maidani and M. Wilderspin, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 30 September 2010,

gives the following

Judgment

1 The reference for a preliminary ruling concerns the interpretation of Articles 12 EC, 17 EC and 18 EC, and also Articles 21, 24 and 34 of the Charter of Fundamental Rights of the European Union (‘the Charter of Fundamental Rights’).

2 That reference was made in the context of proceedings between Mr Ruiz Zambrano, a Columbian national, and the Office national de l’emploi (National Employment Office) (‘ONEm’) concerning the refusal by the latter to grant him unemployment benefits under Belgian legislation.

Legal context

European Union law

3 Article 3(1) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77, and corrigenda OJ 2004 L 229, p. 35, and OJ 2005 L 197, p. 34), provides:

‘This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.’

National law

The Belgian Nationality Code

4 Under Article 10(1) of the Belgian Nationality Code (Moniteur belge, 12 July 1984, p. 10095), in the version applicable at the time of the facts in the main proceedings (‘the Belgian Nationality Code’):

‘Any child born in Belgium who, at any time before reaching the age of 18 or being declared of full age, would be stateless if he or she did not have Belgian nationality, shall be Belgian.’

The Royal Decree of 25 November 1991

5 Article 30 of the Royal Decree of 25 November 1991 (Moniteur belge of 31 December 1991, p. 29888) concerning rules on unemployment provides as follows:

‘In order to be eligible for unemployment benefit, a full-time worker must have completed a qualifying period comprising the following number of working days:

…

2. 468 during the 27 months preceding the claim [for unemployment benefit], if the worker is more than 36 and less than 50 years of age,

…’

6 Article 43(1) of the Royal Decree states:

‘Without prejudice to the previous provisions, a foreign or stateless worker is entitled to unemployment benefit if he or she complies with the legislation relating to aliens and to the employment of foreign workers.

Work undertaken in Belgium is not taken into account unless it complies with the legislation relating to the employment of foreign workers.

…’

7 Under Article 69(1) of the Royal Decree:

‘In order to receive benefits, foreign and stateless unemployed persons must satisfy the legislation concerning aliens and that relating to the employment of foreign labour.’

So it does only applies to EU citizens.
It does remain unclear what the 'Major Implications' for Ireland that the immigrant council are going on about ?

seamus

Morlar wrote: »

It does remain unclear what the 'Major Implications' for Ireland that the immigrant council are going on about ?

Well the one major implication is that any family where any child is an EU citizen has the right to locate anywhere in the EU, regardless of where the child was actually born.

The problem is that although we have closed off our pregnancy tourism loophole, we are effectively at the mercy of all the other EU states who have not closed it.

That said, we're not exactly a top immigrant destination right now, so I can't see it being a maor problem for us.

Morlar

Too cool to care

seamus wrote: »

Well the one major implication is that any family where any child is an EU citizen has the right to locate anywhere in the EU, regardless of where the child was actually born.

The problem is that although we have closed off our pregnancy tourism loophole, we are effectively at the mercy of all the other EU states who have not closed it.

That said, we're not exactly a top immigrant destination right now, so I can't see it being a maor problem for us.

Would anyone know which Eu countries give automatic citizenship to children born within their borders?

Morlar

Too cool to care

So basically any non eu citizen (for example a Nigerian) who has a child with an Irish mother, the child is an EU citizen therefore the father is now legally entitled to remain. This clears it up a bit.

positron

Does every child born in Ireland automatically get Irish citizenship? If so, that doesn't sound right to me somehow. Surely the status of the parents should be taken into consideration, no?

Mena

positron wrote: »

Does every child born in Ireland automatically get Irish citizenship? If so, that doesn't sound right to me somehow. Surely the status of the parents should be taken into consideration, no?

No they don't, it's based on nationality of parents or length of residency (over 3 years)

INIS wrote:

Q. My child was born in Ireland after 1st January, 2005, are they an Irish citizen?
A. The Irish Nationality and Citizenship Act, 2004, which commenced on 1 January, 2005 provides that certain non-Irish nationals are required to be resident in the island of Ireland for a three year period prior to the birth of their child, for that child to be entitled to Irish citizenship. This altered the previous situation whereby a child born in the island of Ireland was automatically entitled to Irish citizenship. Information on making an application for a passport for a child born on or after 1 January, 2005 can be found on the Department of Foreign Affairs website www.foreignaffairs.gov.ie

Source