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The News

Derived right of residence (EUCJ)

8 March 2011, Luxembourg (Case C-34/09). The Court of Justice of the European Union (CJEU) upheld a claim made by a Columbian national, that he enjoys as a very least, a derived right of residence.
 

Mr Zambrano, a Columbian national, applied for asylum status in Belgium, in 1999. His wife applied too. Applications were refused but they could not be sent back to Columbia because their country was at war. They worked, tried to integrate, and even had children, when in Belgium. The children born in Belgium, acquired Belgian citizenship, but the parents' position remained irregular. Efforts to regularise their position, including efforts to get work permits, proved futile. Mr Zambrano claimed before a Belgian employment tribunal, that he enjoys as a very least, a derived right of residence, because his minor children (who clearly were his dependants) were nationals of an EU Member State. This led to a preliminary reference to the EU Court.
 
The Court observed that article 20 TFEU (Treaty of the Functioning of the European Union) confers the status of citizen of the Union on every person holding the nationality of a Member State. Mr Zambrano's children, born in the EU, clearly enjoyed EU citizenship. National measures could not be taken, which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union. A refusal to grant a right of residence to a third country national with dependent minor children in the member State where those children were nationals and reside, and also a refusal to grant a
person a work permit, had such an effect.
 
The Court assumed that such a refusal would lead to a situation where those children, citizens of the Union, would have to leave the territory of the Union in order to accompany their parents. Similarly, if a work permit were not granted to such a person, he would risk not having sufficient resources to provide for himself, and his family, which would also result in the children, citizens of the Union, having to leave the territory of the Union. They would thus be unable to exercise the substance of the rights conferred on them by virtue of their status as citizens of the Union.

Note: Article 20 TFEU reads as follows:

'1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.

2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:

(a) the right to move and reside freely within the territory of the Member States;

(b) the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections in their Member State of residence, under the same conditions as nationals of that State;

(c) the right to enjoy, in the territory of a third country in which the Member State of which they are nationals is not represented, the protection of the diplomatic and consular authorities of any Member State on the same conditions as the nationals of that State;

(d) the right to petition the European Parliament, to apply to the European Ombudsman, and to address the institutions and advisory bodies of the Union in any of the Treaty languages and to obtain a reply in the same language.

These rights shall be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder.'