P v the Minister for Business, Enterprise and Innovation

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P v the Minister for Business, Enterprise and Innovation
Respondent/Defendant:Minister for Business, Enterprise and Innovation, Ireland
Court/s:High Court
Citation/s:[2021] IEHC 609
Nature of Proceedings:Judicial review
Judgment Date/s:30 Jul 2021
Judge:Barrett M.
Category:Employment, EU Treaty Rights, Residence
Keywords:Employment, Employment of ILLEGALLY resident third-country national (Illegal), Non-EU National, Residence Permit, Third-Country National
URL:https://www.courts.ie/acc/alfresco/b0d2c886-bd5e-469b-b142-8e71c4698344/2021_IEHC_609.pdf/pdf#view=fitH

Facts: Mr P, a third-country national, initially applied to remain in Ireland as a permitted family member of an EU citizen. This application was refused and Mr P was in the process of seeking a review of this decision. As a result, Mr P did not have a permission to remain in the State. He applied for a General Employment … Read More

Principles:The Minister cannot refuse an application for a General Employment Permit on the ground that a person does not hold an immigration permission in the State, without examining the specific circumstances of the case and where there is no specific and relevant policy on examining applications for employment permits from persons without an immigration permission.
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Muhammad Uzair Pervaiz v Minister for Justice and Equality

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Muhammad Uzair Pervaiz v Minister for Justice and Equality
Respondent/Defendant:Minister for Justice and Equality
Court/s:Supreme Court
Citation/s:[2020] IESC 27
Nature of Proceedings:Appeal/Judicial Review
Judgment Date/s:02 Jun 2020
Judge:Baker M
Category:Immigration law
Keywords:Family Member, Free Movement, Third-Country National
Country of Origin:Spain and non-EU (not specified)
URL:https://www.courts.ie/acc/alfresco/27a54a3d-420a-4c3f-a9a4-a87369f81de5/2020_IESC_27(Unapproved).pdf/pdf#view=fitH

Facts This appeal was primarily concerned with how the Minister was to approach an application by a third country national to be treated as a permitted family member by reason of being in a durable relationship with a Union citizen. Mr Pervaiz claimed to be in a committed relationship with a Spanish national who was exercising her EU Treaty Rights … Read More

Principles:The Citizens Directive was correctly transposed into Irish law in relation to the determination of applications by “permitted family members” of EU citizens. There was no requirement to provide detailed criteria in the legislation as to what constitutes a durable relationship duly attested.
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Coman v Inspectoratul General pentru Imigrări

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Respondent/Defendant:Inspectoratul General pentru Imigrări
Court/s:ECJ
Citation/s:ECLI:EU:C:2018:385
Nature of Proceedings:Preliminary reference
Judgment Date/s:05 Jun 2018
Judge:Lenaerts K.
Category:EU Treaty Rights
Keywords:Charter of Fundamental Rights of the European Union, EU Treaty Rights, Family Member, Free Movement, Third-Country National, Union Citizen
Country of Origin:Romania, America
URL:http://curia.europa.eu/juris/liste.jsf?num=C-673/16
Geographic Focus:Europe

Facts: Mr Coman, who held Romanian and American citizenship, and Mr Hamilton, an American citizen, met in New York in June 2002 and lived there together from May 2005 to May 2009. Mr Coman then took up residence in Brussels in order to work at the European Parliament as a parliamentary assistant, while Mr Hamilton continued to live in New … Read More

Principles:

Where a Union citizen has made use of his freedom of movement by moving to and taking up genuine residence, in accordance with the conditions laid down in Article 7(1) of Directive 2004/38/EC in a Member State other than that of which he is a national, and, whilst there, has created or strengthened a family life with a third-country national of the same sex to whom he is joined by a marriage lawfully concluded in the host Member State, Member States may not refuse to grant that third-country national a right of residence on the basis that the law of that Member State does not recognise marriage between persons of the same sex.

A third-country national of the same sex as a Union citizen whose marriage to that citizen was concluded in a Member State in accordance with the law of that state has the right to reside in the territory of the Member State of which the Union citizen is a national for more than three months. That derived right of residence cannot be made subject to stricter conditions than those laid down in Article 7 of Directive 2004/38.

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Gorry, Ford and ABM v Minister for Justice

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Respondent/Defendant:Minister for Justice and Equality
Court/s:Court of Appeal
Citation/s:[2017] IECA 280, 281 and 282
Nature of Proceedings:Judicial Review / Appeal
Judgment Date/s:27 Oct 2017
Judge:Finlay Geoghegan M.
Category:Residence
Keywords:Deportation Order, Family Life (Right to), Family Unity (Right to), Immigration, Non-EU National, Residence, Third-Country National, Union Citizen
Country of Origin:Nigeria/Ireland
URL:https://www.courts.ie/acc/alfresco/8c53548e-e3f1-46bd-9973-8b3f13d31f52/2017_IECA_280_1.pdf/pdf#view=fitH
Geographic Focus:Other

Facts: In each of these cases, one of the applicants was an Irish citizen and was married to the other applicant who is a foreign national. The marriages in question either took place in Ireland or Nigeria, and all three were recognised by the Minister as lawful marriages. Each application for judicial review sought an order of certiorari of an … Read More

Principles:

The Minister did not consider the constitutional rights of the applicants in accordance with law, in particular

  1. the guarantee given by the State in Art.41.1.2° to protect the family in its constitution and authority;
  2. a recognition that the applicants in each case were a family, a fundamental unit group of society possessing inalienable and imprescriptible rights which rights included a right to cohabit which was also an individual right of the citizen spouse which the State must, as far as practicable, defend and vindicate (Art.41.1 and Art.40.3.1°);
  3. a recognition that the decision that the family should live in Ireland was a decision which they had the right to take and which the State had guaranteed in Art.41.1 to protect; and
  4. a recognition of the right of the Irish citizen to live at all times in Ireland as part of what Art.2 refers to as the “birth right . . . to be part of the Irish Nation” and the absence of any right of the State (absent international obligations which do not apply) to limit that right.

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Ogieriakhi v Minister for Justice and Equality

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Respondent/Defendant:Minister for Justice and Equality
Court/s:Supreme Court
Citation/s:[2017] IESC 52
Judgment Date/s:13 Jul 2017
Judge:O’Malley I.
Category:EU Treaty Rights
Keywords:EU Treaty Rights, Free Movement, Immigration, Non-EU National, Third-Country National, Union Citizen
Country of Origin:Nigeria/Ireland
URL:https://www.courts.ie/acc/alfresco/608f029a-2647-4aee-9435-0f6b213386bd/2017_IESC_52_1.pdf/pdf#view=fitH
Geographic Focus:Other

Facts: The plaintiff’s wife, a French national, lived and worked in the State between 1999 and the end of 2004, and the plaintiff resided here throughout that period and beyond. In 2007, the plaintiff applied for permanent residence pursuant to art.16 of Directive 2004/38/EC and reg.12 of the Irish implementing regulations, the European Communities (Free Movement of Persons) (No.2) Regulations … Read More

Principles:

The plaintiff/appellant was not entitled to Francovich damages because the error of law made by the Minister in refusing his application for permanent residence was not inexcusable.

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Nwosu v Minister for Justice and Equality

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Respondent/Defendant:Minister for Justice and Equality
Court/s:High Court
Citation/s:[2017] IEHC 372
Nature of Proceedings:Judicial Review
Judgment Date/s:10 Mar 2017
Judge:Faherty M.
Category:Residence, Visa
Keywords:Family Member, Family Reunification, Immigration, Residence, Third-Country National, Visa
Country of Origin:Nigeria / Ireland
URL:https://www.courts.ie/acc/alfresco/46fee6b0-13c3-4252-8513-389ea29706a0/2017_IEHC_372_1.pdf/pdf#view=fitH

Facts: The first named applicant was a health care worker and an Irish citizen. The second named applicant was a business owner and a Nigerian citizen. The first named applicant was born in Nigeria but moved to Ireland in 2002. In 2008, she was granted three years permission to remain in the State. In her grounding affidavit, the first named … Read More

Principles:

The Minister was entitled to refuse an application for a join spouse visa on the basis that the applicants did not meet the minimum income threshold set out in the  INIS Policy Document on non-EEA Family Reunification and therefore finding that the grant of the visa was likely to put pressure on the family’s financial resources with the likelihood of a cost to public funds and public resources.  

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Ahsan v Minister for Justice and Equality

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Respondent/Defendant:Minister for Justice and Equality
Court/s:High Court
Citation/s:[2016] IEHC 691
Nature of Proceedings:Judicial Review
Judgment Date/s:28 Oct 2016
Judge:Faherty M.
Category:EU Treaty Rights
Keywords:EU Treaty Rights, Freedom of Movement (Right to), Immigration, Third-Country National, Union Citizen, Visa
Country of Origin:United Kingdom/Pakistan
URL:https://www.courts.ie/acc/alfresco/208f7b4e-f207-4984-9ae9-98f2a6316beb/2016_IEHC_691_1.pdf/pdf#view=fitH
Geographic Focus:Other

Facts: The applicant was an EU citizen who had moved to the State and wanted a visa for his wife to allow her join him. The rights asserted by the applicants arose pursuant to Directive 2004/38/EC (“the Citizens’ Directive”) and in particular article 5(2) which provided that such visas should be issued “as soon as possible and on the basis … Read More

Principles:

The decision in Ahsan establishes that delays of several months in the determination of visa applications by non-national family member of EU citizens to allow them join EU nationals in the State are in breach of EU law, notwithstanding the unprecedented surge in the numbers of such applications which pose logistical difficulties for the Minister. Generalised concerns as to potential abuse of EU Treaty Rights are not sufficient to justify such delays.

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Bakare v Minister for Justice

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Respondent/Defendant:Minister for Justice
Citation/s:[2016] IECA 292
Nature of Proceedings:Appeal/Judicial Review
Judgment Date/s:19 Oct 2016
Judge:Hogan G.
Category:Deportation
Keywords:Child, Deportation, Family Life (Right to), Third-Country National, Union Citizen
Country of Origin:Nigeria
URL:https://www.courts.ie/acc/alfresco/be94c6e9-50fc-42ee-902d-0c3d2a1b9fe1/2016_IECA_292_1.pdf/pdf#view=fitH
Geographic Focus:Other

Facts: In Bakare v Minister for Justice the Court of Appeal considered the applicability of the Zambrano case in situations where it is proposed to deport only one parent of an Irish citizen child. The applicant was a Nigerian citizen who arrived in the State in February 2002 when he applied for asylum on grounds of his ethnicity and his … Read More

Principles:

The decision of the Court of Appeal in Bakare confirmed that Zambrano is only applicable in cases where the denial of residency or similar rights to one or both third country nationals who are the parents of EU citizen children is likely to bring about a situation where those children are in practice compelled to leave the territory of the Union. The rule in Zambrano does not apply to decisions to deport one parent of an Irish citizen child where the other parent is residing in Ireland and there is no appreciable risk that the deportation of one parent will force the child to leave.

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HN (Nawaz) v Minister for Justice, Equality and Law Reform

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Nawaz
Respondent/Defendant:Minister for Justice, Equality and Law Reform
Court/s:Supreme Court
Citation/s:[2012] IESC 58
Nature of Proceedings:Appeal
Judgment Date/s:19 Dec 2012
Judge:Supreme Court (Fennelly J, O'Donnell J, McKechnie J, Clarke J, MacMenamin J)
Category:Refugee Law
Keywords:Asylum, Geneva Convention & Protocol, Protection, Protection (Application for International), Protection (International), Protection (Person Eligible for Subsidiary), Protection (Subsidiary), Protection Status (Subsidiary), Refugee, Refugee (Convention), Third-Country National
Country of Origin:Pakistan
URL:https://www.courts.ie/acc/alfresco/85c26c9e-adaf-4910-8187-53a056c2c041/2012_IESC_58_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts The applicant was a national of Pakistan and from the Swat Valley. He arrived in Ireland in 2003 on a student visa. He married an Irish national and was granted permission to remain in the State until 2005. The marriage ended and the Minister notified him that his permission to be in the State was not being renewed as … Read More

Principles:

The true question was whether the ‘Qualification Directive’ required Member States, in their implementing measures, to make it possible for a third country national to make an application for subsidiary protection without making any application for refugee status. 

In order to determine whether the Minister was obliged to consider the applicant’s application for subsidiary protection in the absence of a determination that he was not entitled to refugee status, it was necessary to establish whether it is compatible with the ‘Qualification Directive’ for Irish law to provide that an application for Subsidiary protection will not be considered unless the applicant has already applied for and been refused refugee status. 

For this purpose the Supreme Court referred the following question to the European Court of Justice for preliminary ruling in accordance with Article 267 TFEU:

“Does Council Directive 2004/83/EC, interpreted in the light of the principle of good administration in the law of the European Union and, in particular, as provided for by Article 41 of the Charter of Fundamental Rights of the European Union, permit a Member State, to provide in its law that an application for subsidiary protection status can be considered only if the applicant has applied for and been refused refugee status in accordance with national law?”

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Hussein v Labour Court & Anor

Respondent/Defendant:Labour Court & Anor
Court/s:High Court
Citation/s:Unreported
Nature of Proceedings:Judicial Review
Judgment Date/s:31 Aug 2012
Judge:Hogan J
Category:Employment
Keywords:Employee, Employer, Employment, Employment (Illegal), Employment of ILLEGALLY resident third-country national (Illegal), Exploitation, Foreigner, Immigration (Illegal), Migrant (Illegally resident / staying), Migrant Worker, Migration (Exploitative), Third-Country National, Third-Country national found to be illegally present
Country of Origin:Pakistan
URL:http://www.courts.ie/judgments.nsf/6681dee4565ecf2c80256e7e0052005b/3f2a0cfdd0d10ccd80257a6b004e2e1b
Geographic Focus:Ireland

Facts The applicant, Mr Hussein, and the notice party, Mr Younis are Pakistani nationals and cousins. In 2002, Mr Hussein, who operates a restaurant in Ireland, recruited his cousin to work as a Tandoori chef. Mr Younis maintained that he was required to work seven days a week with no holidays, that he was paid what amounted to pocket money … Read More

Principles:

Neither the Rights Commissioner nor the Labour Court can lawfully entertain an application for relief in respect of an employment contract that is substantively illegal for want of a work permit. Undocumented migrant workers do not benefit from employment legislation, even where they are not responsible for their unlawful status.

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LAT & Ors v Minister for Justice and Equality & Ors

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Tijani
Respondent/Defendant:Minister for Justice and Equality & Ors
Court/s:High Court
Nature of Proceedings:Judicial Review
Judgment Date/s:02 Nov 2011
Judge:Hogan G.
Category:Deportation
Keywords:Deportation, Deportation Order, Entry Ban, Expulsion, Expulsion Decision, Third-Country National, Third-Country national found to be illegally present
Country of Origin:Nigeria
URL:http://www.courts.ie/__80256F2B00356A6B.nsf/0/ABA421A317AFC24B80257A1500503C9E?Open&Highlight=0,LAT,~language_en~
Geographic Focus:Ireland

The application for judicial review presented a single issue of law, i.e., whether a deportation order made under section 3(1) of the Immigration Act 1999 must be made personally by the Minister for Justice and Equality. The deportation order had been made in the name of the Minister by Noel Waters, the Director General of the Irish Naturalisation and Immigration … Read More

Principles:

The Minister for Justice and Equality does not have to make deportation orders under section 3(1) of the Immigration Act 1999 personally. The Carltona doctrine applies to the making of deportation orders under section 3(1) of the Immigration Act 1999.

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Troci v Governor of Cloverhill Prison

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Respondent/Defendant:Governor of Cloverhill Prison
Court/s:High Court
Citation/s:Unreported High Court (Hogan J) 2nd November 2011 2011 IEHC 405
Nature of Proceedings:Article 40.4.2 Enquiry
Judgment Date/s:02 Nov 2011
Judge:Hogan G.
Category:Deportation
Keywords:Deportation, Deportation Order, Detainee, Detention, Entry Ban, Expulsion, Expulsion Decision, Family Life (Right to), Family Unity (Right to), Third-Country National, Third-Country national found to be illegally present, Union Citizen
Country of Origin:Albania
URL:https://www.courts.ie/acc/alfresco/2cb16ab5-b669-4336-a856-160050889e46/2011_IEHC_405_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

This case involved an application brought under Article 40.4.2 of the Constitution of Ireland. The Applicant, Ervis Troci, an Albanian national, was arrested pursuant to s. 5(1) (d) of the Immigration Act 1999. He had sought asylum, and his application had been rejected and he subsequently sought to remain in the State for humanitarian reasons. While in the State, the … Read More

Principles:The suspicion on the part of an immigration officer or member of the Garda Siochana underpinning the arrest of a person against whom a deportation order is in force under s. 5(1)(d) of the Immigration Act 1999, must refer to some overt act or deed, including statements, on the part of the arrested person, or some external piece of intelligence which suggests that there is a risk that such a person will seek to evade deportation.
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Ejerenwa v Governor of Cloverhill Prison

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Respondent/Defendant:Governor of Cloverhill Prison
Court/s:Supreme Court
Citation/s:2011 IESC 41, 28th October 2011, Unreported
Nature of Proceedings:Article 40.4.2 Enquiry
Judgment Date/s:28 Oct 2011
Judge:Denham C.J.
Category:Deportation, Detention
Keywords:Asylum Seeker, Border Crossing, Deportation, Detainee, Detention, Entry (Illegal), Nationality, Non-EU National, Non-national, Refoulement, Refoulement (Non-), Removal, Removal Order, Third-Country National, Third-Country national found to be illegally present
Country of Origin:Contested
URL:https://www.courts.ie/acc/alfresco/e9112918-ca1e-4951-b432-19ca4e38ba69/2011_IESC_41_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

This case involved an appeal to the Supreme Court in respect of an application brought under Article 40.4.2 of the Constitution of Ireland. The High Court had found that the Applicant’s detention was in accordance with law. The Applicant appealed this to the Supreme Court. On the evening of 1 August 2011, Gardai stopped a bus which had crossed the … Read More

Principles:
  1. A detention order should contain clear information on its face as to the basis of its jurisdiction. In respect of s. 5(2)(a) of the Immigration Act 2003, in particular, it is necessary for a detention order to state on its face which provision or provisions of s. 5(1) of that Act apply.
  2. A warrant of detention is not required to make statements of law, and it is not necessary for a detention order to show on its face the time permitted for detention, where the period permitted for detention is a matter of general law and/or provided by statute.
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Om v Governor of Cloverhill Prison

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Respondent/Defendant:Governor of Cloverhill Prison
Court/s:High Court
Citation/s:1st August 2011, 2011 IEHC 341, Unreported
Nature of Proceedings:Article 40.4.2 Enquiry
Judgment Date/s:01 Aug 2011
Judge:Hogan, G.
Category:Deportation, Detention
Keywords:Deportation, Deportation Order, Detainee, Detention, Entry Ban, Expulsion, Expulsion Order, Nationality, Non-EU National, Non-national, Refoulement, Refoulement (Non-), Removal, Removal Order, Third-Country National, Third-Country national found to be illegally present
Country of Origin:Contested
URL:https://www.courts.ie/acc/alfresco/bcf48dda-1963-4d70-b922-1aab45121c45/2011_IEHC_341_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

This case involved an application brought under Article 40.4.2 of the Constitution of Ireland. The Applicant, David Fracis Om, who had unsuccessfully sought asylum, claimed to be Liberian, but his precise origins were a matter of doubt throughout the asylum process. The Refugee Applications Commissioner had found that he showed a distinct lack of knowledge of Liberian history and geography, … Read More

Principles:
  1. The question of whether a suspicion that a person intends to evade deportation, so as to allow for that person’s detention, is justified under s. 5(1) (d) of the Immigration Act 1999 is an objective one.
  2. Detention of a person (against whom a deportation order has been made) under s. 5 of the Illegal Immigrations Act 1999 must be for the purposes of effecting a deportation order, and it must be evident that the deportation can actually be effected within the eight week statutory period.
  3. Matters relevant to whether there is any likelihood that deportation can be effected within the maximum detention period are:
    whether there is an investigation of an Applicant’s nationality;
      whether it would be necessary for the Minister to consider the issue of refoulement afresh; and
        practicalities re organising deportation.
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          Raducan and Raducan v Minister for Justice, Equality and Law Reform and Others

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          Respondent/Defendant:Minister for Justice, Equality and Law Reform and Others
          Court/s:High Court
          Citation/s:[2011] IEHC 224
          Judgment Date/s:03 Jun 2011
          Judge:Hogan J.
          Category:Detention, EU Treaty Rights
          Keywords:Detention, EU Treaty Rights, Family Member, Removal, Residence Permit, Third-Country National, Union Citizen
          Country of Origin:Romania and Moldova
          URL:https://www.courts.ie/acc/alfresco/3a677548-57b6-48b6-9f85-310d35a37e8b/2011_IEHC_224_1.pdf/pdf#view=fitH
          Geographic Focus:Ireland

          Mr Raducan was Romanian and Ms Raducan was Moldovan. They married in Romania in 2007. The moved to Ireland in 2007 and in 2010 they returned briefly to Romania. While there, they obtained a certified copy of their marriage certificate. Ms Raducan also obtained a residence card as a family member of a Union citizen. They returned to Ireland on … Read More

          Principles:

          The procedures at Dublin Airport for spouses of EU citizens are inconsistent with the Citizenship Directive

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          Case C-434/09 McCarthy v Secretary of State for the Home Department

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          Respondent/Defendant:Secretary of State for the Home Department
          Court/s:ECJ
          Citation/s:Case C-434/09
          Nature of Proceedings:Article 234 Reference
          Judgment Date/s:05 May 2011
          Judge:Court of Justice of the European Union
          Category:EU Treaty Rights
          Keywords:EU Treaty Rights, Family Member, Free Movement, Freedom of Movement (Right to), Nationality, Residence Permit, Third-Country National, Union Citizen
          Country of Origin:United Kingdom and Ireland
          URL:http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?isOldUri=true&uri=CELEX:62009CJ0434
          Geographic Focus:Europe
          References:Case C-34/09 Ruiz Zambrano v. Office National de l'Emploi

          Ms McCarthy, a national of the United Kingdom, was also a national of Ireland. She was born in the United Kingdom and had always resided there, without ever having exercised her right to move and reside freely within the territory of other EU Member States. Following her marriage to a Jamaican national, Ms McCarthy obtained an Irish passport and applied … Read More

          Principles:

          EU citizens who have never exercised their right of free movement cannot invoke Union citizenship to regularise the residence of their non-EU spouse. Where such persons are not deprived of their right to move and reside within the territory of the Member States, their situation has no connection with European Union law

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          Case C-34/09 – Gerardo Ruiz Zambrano v Office National de l’Emploi

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          Respondent/Defendant:Office National de l’Emploi
          Court/s:ECJ
          Citation/s:Case C-34/09
          Judgment Date/s:08 Mar 2011
          Judge:Court of Justice of the European Union
          Category:Citizenship, EU Treaty Rights
          Keywords:Citizenship, EU Treaty Rights, Free Movement, Freedom of Movement (Right to), Third-Country National
          Country of Origin:Columbia
          URL:http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?isOldUri=true&uri=CELEX:62009CJ0034
          Geographic Focus:Europe

          Mr Ruiz Zambrano and his wife, both Columbian nationals, applied for asylum in Belgium due to the civil war in Columbia. The Belgian authorities refused to grant them refugee status and ordered them to leave Belgium. The couple continued to reside in Belgium while waiting for their applications to have their residence situation regularised. Mr Ruiz Zambrano’s wife gave birth … Read More

          Principles:

          Article 20 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.

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