By Rainer Bauböck, EUDO CITIZENSHIP co-director
In a major decision on 8 March 2011, the European Court of Justice has decided that Mr. Gerardo Ruiz Zambrano, a Columbian citizen, has a right to residence in Belgium and does not need a work permit for employment there because two of Mr. Zambrano’s children are Belgian nationals and therefore also EU citizens. In previous ECJ cases, such as the 2004 verdict in Chen, similar rights of a parent had still been linked to the exercise of the right of free movement and residence by the child who is an EU citizen. In the Zambrano case, the ECJ has now affirmed that such derivative rights for third country national parents who are primary caregivers for a child who is an EU citizen apply also in the country that has granted citizenship to the child.
Mr. and Mrs. Zambrano are Columbian nationals who had come to Belgium and applied for asylum there in 1999 and 2000 respectively. Their applications were denied. Two of the Zambrano’s children were born in Belgium in 2003 and 2005 and were granted Belgian nationality in order to avoid that they would otherwise become stateless. Columbian law does not automatically recognise Columbian nationality of children born abroad to Columbian national parents, unless these take specific actions. At various points in time, Belgian authorities had rejected Mr. and Mrs. Zambrano’s applications for residence permits and had denied Mr. Zambrano unemployment benefits on grounds that he had been employed without a work permit. Mr. Zambrano challenged these decisions arguing that he enjoys a right to residence and access to employment directly by virtue of the EC Treaty or, at the very least, that he enjoys the derived right of residence, recognised in by the ECJ in Chen for the ascendants of a minor child who is a national of a Member State and that, therefore, he is exempt from the obligation to hold a work permit.
The ECJ agrees in his decision that Article 20 of the Lisbon Treaty (TFEU) 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.
Read reports on the decision in the Irish Times and the Wall Street Journal-Blogs