Zambrano And European Citizenship: A Trump Card For British Children?

A short decision by the European Court of Justice, Ruiz Zambrano (European Citizenship) [2011] EUECJ – C- 34/09, has struck a clean blow against the bid by Member State Governments to exclude regulation of their nationals, who have never exercised their right to free movement, from the domain of European Law. Classic economic rights will normally only have force if physical movement between member states has occurred. However, it is now clear that Citizenship of the Union also confers rights which are not bound to movement.

In Zhu and Chen, "Zhu" was born in Northern Ireland to a Chinese national mother "Chen", and acquired Irish citizenship at birth as a result of the nationality laws then in force. After Zhu's birth, Chen moved with Zhu to England, and Chen was granted a right of residence on the basis that it would otherwise be impossible for Zhu, a toddler, to exercise her rights as a citizen of the Union effectively. All Zhu's movement took place within one member state, and she did not have to travel outside the United Kingdom, in order for her mother to establish a right of residence. However, until now the case of Chen might well have been seen as an exceptional case, turning on the fact of an unusual law of nationality, which allowed citizenship of member state to be acquired by a person who had never entered it.

In Zambrano, RZ and his spouse were nationals of Columbia. Following the refusal of RZ's claim for Asylum, he made three applications for residence each of which was refused. In the meantime he took up employment in Belgium for five years despite being without permission to do so, and his spouse gave birth to two children ("X" and "Y") who both acquired Belgium nationality. X and Y were therefore nationals of a member state, their parents were both third country nationals, and neither X or Y had ever travelled to a different member state. The question for the court was whether RZ and his wife could invoke a right of residence in a member state based upon the citizenship of X and Y.

It was common ground that, like Zhu in the case of Chen, X and Y as children could not exercise their rights as Union Citizens to move and reside in any member state fully and effectively without the presence and support of their parents. The right of EU Citizens to move and reside freely within the territory of member states is fundamental. In the view of the Advocate General, it is not a combined right, so that residence and movement cannot...