Post
by riseen » Sun Jul 03, 2011 7:40 pm
Frequently Asked Questions about the Zambrano Judgment
Question 1
My child is an EU citizen but does not hold an Irish Passport. Does the Zambrano Judgment apply to my case?
Response 1
No. In an Irish context, the Zambrano Judgment applies to certain third country nationals but in all cases they must be the parent of an Irish born citizen child before they can seek residency in Ireland under the terms of the Zambrano Judgment.
Question 2
My child is an Irish born citizen but, despite being born there, has not resided there at any stage. Does the Zambrano Judgment allow me a right of residence in Ireland?
Response 2
No. The Zambrano Judgment applies to an Irish born citizen child’s country of residence and nationality. If an Irish born citizen child has not been ordinarily resident in Ireland then his/her parent(s) cannot rely on the Zambrano Judgment as a basis for securing a right of residence in Ireland.
Question 3
I am a non-EEA national. I lived in Ireland for some years but left some time ago to return to my country of origin. I left voluntarily and was never the subject of a Deportation Order. I am the parent of an Irish born citizen child. Can I rely on the Zambrano Judgment to allow me to reside in Ireland?
Response 3
No. The Zambrano Judgment does not apply to any person who left Ireland of their own volition. Such persons can, of course, apply for a visitor or study visa to visit Ireland but cannot rely on the Zambrano Judgment as a basis to obtain a right of residence in Ireland.
Question 4
I am a failed asylum seeker and am the parent of an Irish born citizen child. I have applied to the Minister for Justice and Equality for Subsidiary Protection and I have also submitted representations to the Minister for consideration under Section 3 of the Immigration Act 1999 (as amended). I would wish to rely on the Zambrano Judgment to secure a right of residence in Ireland. What should I do to advance this?
Response 4
Your application for Subsidiary Protection will have to be considered first and a decision notified. If the Subsidiary Protection decision is favourable then no further consideration of your case would be required, given that the status of Subsidiary Protection carries a right of residency for a statutory, renewable, three year period.
Where, however, the Subsidiary Protection application is refused, your case must then be considered under Section 3 of the Immigration Act 1999 (as amended). At that point, given that you are the parent of an Irish born citizen child, this would be factored into the Section 3 consideration. If it appears that the Zambrano criteria are met in your case, and there are no significant issues of criminality associated with your case, you are likely to be granted permission to remain in the State for a three year period, subject to a set of stated conditions.
If you are concerned that the presence of a Subsidiary Protection application may delay the finalisation of your case, it would be open to you to withdraw that application. If you decided to pursue that option, this must be made known in writing to the Repatriation Division, Dept. of Justice and Equality, 13-14 Burgh Quay, Dublin 2.
Question 5
I have been told that, if granted a right of residency, I will have a Stamp 4 based permission to remain in Ireland. What does this mean?
Response 5
A Stamp 4 denotes that the holder has an immigration permission to be in the State and the right to work without the need for an Employment Permit. It does not, however, confer on the holder an entitlement to any particular public service or funding. Such matters are determined by the relevant government departments or State agencies. Once a person is granted permission to remain on Stamp 4 conditions, it is generally renewed subject to the laws of the State being observed and other conditions being complied with. Such conditions will be set out in your decision letter.
Question 6
I am the father of an Irish born citizen child but my name is not on my child’s Birth Certificate. What would I need to do to convince the Minister for Justice and Equality that I should be permitted to remain in Ireland?
Response 6
In circumstances where there is doubt as to parentage of an Irish citizen child, such as where a father’s details were not recorded on the child’s Birth Certificate when the child was being registered, the onus will be on any such person claiming parentage of an Irish citizen child to produce evidence of a biological link to that child. Verifiable DNA evidence would be required as would documentary evidence of the role that such a parent had been playing in his/her child’s life etc.
Question 7
I was granted permission to remain in the State, on Stamp 4 conditions, by the Minister for Justice and Equality last year. I have an Irish born citizen child. Does the Zambrano Judgment offer me anything extra in terms of my immigration status in the State?
Response 7
Assuming that you have ‘registered’ with the Garda National Immigration Bureau (GNIB) and, as such, hold a GNIB Card with a Stamp 4, then the Zambrano Judgment offers you nothing that you don’t already have. You already hold a right of residency which allows you to work in the State without a Work Permit or to set up in any legitimate business or profession without the permission of the Minister. You can apply for renewal of your permission to remain before your current permission to remain expires. Where it is clear that you have complied with the conditions attaching to your current permission to remain, and you have not come to the adverse attention of An Garda Siochana, or any other State service provider, your permission to remain will be renewed.
Question 8
I wish to make a case to obtain residency on the basis of the Zambrano Judgment. Will I need to make my case through a solicitor?
Response 8
No, there is no requirement that any such documentation be submitted through a solicitor. Once the required documentation is submitted, the case is considered on its merits regardless of whether it was submitted by an individual or by a solicitor acting on his/her behalf. However, where you decide to make your case through a solicitor, you will need to give your written consent to that solicitor to act on your behalf for the purposes of your dealings with the Department of Justice and Equality. Where such written consent is not included in correspondence received from a solicitor, the Department will not be in a position to respond substantively to that solicitor but will instead request the solicitor to submit evidence of their written authority to act on that applicant’s behalf. This position is well known to the membership of the legal profession.
All correspondence in relation to the Zambrano Judgment should be sent to:
Repatriation Division,
INIS,
13-14 Burgh Quay,
Dublin 2
