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Source: http://www.economist.com/blogs/blighty/ ... immigrants
The Court of Justice of the European Union and Citizens of the Union: A Revolution Underway? The Zambrano judgment 8 March 2011 Elspeth Guild Centre for Migration Law, Radboud University Nijmegen 2
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The operative part of the judgment is surprisingly short – only 10 paragraphs. This
may indicate that there was much disagreement among the judges about the legal
issues. On the positive side, this means the case is very clear and there is no space for ambiguity. The key and startling findings of the CJEU are as follows:
• The case of the Zambrano family is a matter of EU law as the children as
Belgian nationals, and therefore also EU citizens, living in Belgium;
• Directive 2004/38 does not apply to them as it only applies to EU citizens who
move and reside in another Member State;
• The rights of the two Zambrano children who are EU citizens comes directly
from Article 20 TFEU (citizenship of the Union);
• Those rights include:
o The right to live in Belgium 40 and 41);
o The right of residence for their third country parents (both of them it
would seem) to live in Belgium with them as this is necessary for the
children who are EU citizens to enjoy their rights as citizens of the
Union (para 42 and 43);
o The right to a work permit for the third country national parents to
support the children (as otherwise they might all have to leave the
state on ground of penury) (para 44).
There is no mention of the EU Charter of Fundamental Rights or the ECHR. These rights for third country nationals derive directly and exclusively from Article 20 FTEU – citizenship of the European Union.
What does this mean? There are two immediate consequences:
• Any third country national family which includes at least one dependent minor child who is an EU citizen, even if that child is the citizen of the state where the family lives, is entitled to rely on the EU child’s rights under Article 20 TFEU to found a residence right in the state. There is no clarity on the form of the residence right.
• The third country national family members of a dependent minor EU national child, even where that child is a national of the state where the family lives, are entitled to work permits.
Both these rights for third country national family members are based on the principle that the dependent minor EU national child might have to leave the territory of the Union in order to accompany his or her parents if those parents were not allowed to reside and work to support the child.
From this logic some corollary issues arise:
• When is a child not a dependent minor child? In the CJEU’s judgment C-480/08
Teixeira interpreting Article 12 Regulation 1612/68, it found for the purposes of that
provision, according to which a child is defined as dependent and under 21 for the
purposes of education rights, that denying the right after the child passed the upper
age limit would deprive the right of its force (para 82) and that even adult children
may need the presence of their parents to successfully access their education rights.
This line of argument could be applied by analogy;
• The same Teixeira judgment found that access to social welfare benefits for the
parent was consistent with caring for the (adult) child in education;
• Does the logic also apply to third country national spouse and other family members?
There does not seem to be any obvious reason why the argument should be any different if the third country national family member were a spouse rather than a child. The CJEU will have a chance to address this in a pending case McCarthy.
9 March 2011
Elspeth Guild