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
Introduction
1.
Irish citizen children’s right to family life within
Ireland?
2.
Free movement of children within the EU
3.
Family reunification provisions?
Articles 20 and 21 TFEU
– Rights of EU Citizens in their own Member State
Art 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
Citizen Children’s Rights to Family Life in Ireland?
- the history
Fajujonu v 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 child
Bode (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. [...].’
Citizen Children’s Rights to Family Life in Ireland?
- before Zambrano
Dimbo & Oguekwe v 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)
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 Bundesministerium für Inneres
 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
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
Irish Case-Law concerning EU Treaty Rights
- post Zambrano
E. 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
‘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
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 resources for 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”
Family Reunification?
Directive 2003/86/EC  not applicable in Ireland
but 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
… 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
THANK YOU!
hilkka@immigrantcouncil.ie