Yesterday the European Court of Justice made a ruling which allows Colombian national parents to reside in Belgium with their Belgian born children.
The Irish government submitted a written observation to the European Court and appear to have been fearful of an opening of the “floodgates” in claims that Irish-born children and their families should have a right to reside in Ireland.
The case before the European Court concerned a Colombian national, Mr. Zambrano. He and his wife had fled Colombia after a series of assaults and threats by militia, and after his three-week old son was kidnapped for a week. Mr. Zambrano, his wife and son moved to Belgium and requested asylum. His request was refused, but the Belgian government did not order his deportation due to the serious risk to him and his family in Colombia. He subsequently began working in Belgium, paying social security, and he and his wife had two more children. Under Belgian law, these two Belgian-born children obtained Belgian nationality.
Here is the difference between Belgian law and Irish law. In 2004, the Irish people voted to restrict the right to acquire Irish citizenship in a referendum. After that the government introduced legislation which set out certain criteria which must apply before an Irish-born child is granted Irish citizenship. If Mr. Zambrano had moved to Ireland with his wife and child, he would have had to have resided in Ireland for 3 years out of 4 before the birth of the child. If that were not the case, and his children were not entitled under Irish law to become Irish citizens, then there would be no right for Mr. Zambrano and his wife to live in Ireland.
The European Court has held that as the Zambrano children are Belgian citizens in accordance with Belgian law, they are entitled to a right of residence in Belgium. As they are obviously not able to look after themselves, they are therefore entitled to have their non-national parents live in Belgium with them to ensure that their rights are upheld.
Although reading the headlines about the case might make one think that this will change the situation that applies in Ireland, it seems to me that the ruling won’t give much comfort to non-nationals attempting to claim a right of residence in Ireland through their children unless Irish national law changes.
Maria O’ Donovan is a solicitor in Wolfe & Co. Solicitors, Market Street, Skibbereen, Co. Cork. Visit their website at www.wolfe.ie
