Parents of Irish Citizens – Zambrano cases and more

Nationals of non-European countries whose child or children are Irish citizens may apply for permission to reside and work in Ireland. This is not an automatic entitlement and permission to reside and work must be sought by the non-EEA parent, who is required to make an application to the Irish Naturalisation and Immigration Service (INIS).

The situation of the family should be looked at as a whole, and the initial application to the INIS should include comprehensive detail about the relationship of the child(ren) with both parents, and about whether it is reasonable to expect the parent(s) to return to their country of origin with the child(ren), as a family unit. Should the initial application fail, significant delays in accessing one’s rights can result, so that there are significant benefits to making a thorough and detailed initial application.

I am happy to provide assistance to the parents of Irish citizen children who wish to apply for permission to reside and work, on the basis that a portion of the fees agreed will become payable if or when the permission is granted.

Such permissions are granted, depending on the circumstances, with reference to the European Court of Justice (ECJ) decision in the seminal Zambrano case (C-34/09, March 2011), and also to the protection afforded to the family under Article 41 of the Irish Constitution.

A decision of Hogan J in the High Court of September 2012 (EA & PA v Minister for Justice, 08 September 2012  [IEHC] 371) provides a useful look back at the manner in which the judicial thinking about the rights of families whose members comprise both Irish and non-European members has changed in recent years. The decision also provides an indication of current judicial thinking in respect of the rights of Irish citizen children and of their non-EEA parents to reside and work in the state.

The decision in Zambrano held that:

“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.”

The decision in Zambrano also stated that “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 a refusal to grant such a person a work permit, has such an effect [ie deprives the children of the enjoyment of the substance of their rights as EU citizens]”.

However, the position taken by Hogan J in the High Court in EA & PA is in essence that, where it is reasonable to expect that a family that includes Irish citizen children would return to the country of origin of the parent(s) as a family unit, the state is not required to grant permission to remain either under the Zambrano decision or under Article 42 of the Constitution. On the other hand, where the refusal to grant permission to remain and work to one of the parents will deprive the child of the company of that parent, then permission should be granted.