Judicial Europeanisation: The Case of Zambrano in Ireland

Abstract

The Court of Justice of the European Union is an important motor of integration and is said to be particularly strong in those cases where the Council shows an inability to act. What is the relevance of the Court to social Europe? Europeanisation studies analyse how member states change due to European integration. Judicial Europeanisation is a topic that is under-explored in the literature. Using a case-study approach, this paper analyses the Zambrano case, one of the most notable recent cases of judicial activism of the CJEU with regard to EU citizenship rights. Although the literature often assumes that member states only reluctantly embrace the requirements of case law, the Irish government immediately obliged its administration to implement the required changes. Analysing this case in greater detail and comparing it to the responses of several other member states promises to shed some light on the under-explored question of how Europeanisation through case law proceeds, and what the Court may contribute to social Europe.

Acknowledgements

I would like to thank Sascha Göbel and Martin Losch for their excellent research assistance, and Angelika Schenk for her suggestions. I profited from comments at the workshop in Copenhagen, March 2013, in particular by Oliver Treib and Dimiter Toshkov, as well as by Dorte Martinsen and Hans Vollaard. Valuable suggestions were also made at EUSA 2013 in Baltimore (special thanks to Philipp Genschel), in Oslo September 2013, and in Cologne January 2014. Several people helped me to understand the empirics. I would like to thank Thomas Henze (Federal Ministry of Economics), Hilkka Becker (Immigrant Council of Ireland), John Handoll and Elaine Fahey.

Funding

Financial support through the German Science Foundation via the CRC 597 is gratefully acknowledged.

Notes

1. Carol Coulter and Jamie Smyth, ‘Case Review for Non-Irish Parents of Irish Citizens’, The Irish Times, 22 March 2011.

2. Jim Cusack, ‘Smith Deported 416 in Six Weeks as Justice Minister’, Irish Independent, 3 April 2011.

3. Fionnán Sheahan, ‘Women Arrive from Airport in Labour’, Irish Examiner, 31 May 2004; Fionnán Sheahan, ‘Revealed: Proof of Citizenship Tourism’, Irish Examiner, 27 May 2004; cited after Grossman (2004).

4. Bode (A Minor) v. Minister for Justice Equality & Law Reform & Ors (2007).

5. A.O. & D.L. v. Minister for Justice (2003).

6. Bode (A Minor) v. Minister for Justice Equality & Law Reform & Ors (2007).

7. Carol Coulter, ‘Review Sought of Scheme Allowing Migrant Parents to Live in Ireland’, The Irish Times, 23 March 2012.

8. Pamela Duncan, ‘State Pays €1.2 m to Settle Cases with Non-EU Parents’, The Irish Times, 15 October 2012.

9. Houses of the Oireachtas, 30 January 2013, Written Answer No. 149 – Citizenship Applications, available at http://oireachtasdebates.oireachtas.i.e./debates%20authoring/debateswebpack.nsf/takes/dail2013013000075?opendocument#WRW01150 (accessed 28 February 2013).

10. I thank Niamh Nic Shuibhne for pointing this out to me.

11. Department of Justice, Equality and Defence, Deportation orders, 23 March 2011, available at http://www.kildarestreet.com/wrans/?id=2011–03-23.600.0 (accessed 19 March 2014).

12. Jim Cusack, ‘State Facing €100 m Bill to Fight 2000 Asylum Seeker Deportation Injunctions’, Irish Independent, 11 December 2011.

13. Immigrant Council of Ireland, ‘Citizenship Queries Top Issue on Immigrant Council Helpline’, 6 January 2013, available at http://www.immigrantcouncil.ie/media/press-releases/623-citizenship-queries-top-issue-on-immigrantcouncil-helpline-over-5000-inquiries-from-145nationalities-migrants-showing-commitment-to-ireland (accessed 28 February 2013); Immigrant Council of Ireland, ‘50,000 People Accessed Information on Migrant Issues from ICI Last Year’, 2 February 2012, available at http://www.immigrantcouncil.ie/media/press-releases/520-50000-people-accessed-information-on-migrant-issues-from-ici-last-year (accessed 28 February 2013).

14. Thomas Crosbie, ‘Children Win Right to Stay in EU Birth Place’, Irish Examiner, 9 March 2011.

15. Findings of judgments with reference to the Zambrano case are based on a keyword search on the website of the Courts Service of Ireland, accessible via http://www.courts.ie/Judgments.nsf/advancedsearch?openform&l=en.

16. Immigrant Council of Ireland, ICI News Bulletin – Issue 102, 27 September 2012, available at http://www.immigrantcouncil.ie/news-bulletin/2012/594-ici-news-bulletin-issue-102 (accessed 19 March 2014); E.A. & Anor v. Minister for Justice & Anor (2012); ‘Rights of the Child Mean Father Should Not be Deported’, The Irish Times, 11 December 2012.

17. Smith v. Minister for Justice & Equality & Ors (2013).

18. Findings based on a search on the webpages of the examined newspapers and on a Factiva search, keyword ‘Zambrano’, March 2013.

19. Legal Tribune Online, Pia Lorenz interviewing Prof.. Dr. Daniel Thym, Bleiberecht für ausländische Eltern, ‘Wenn Luxemburg keine Ausnahme zulässt, wären die Konsequenzen enorm’, 10 March 2011, available at http://www.lto.de/recht/hintergruende/h/bleiberecht-fuer-auslaendische-eltern-wenn-luxemburg-keine-ausnahmen-zulaesst-waeren-die-konsequenzen-enorm/ (accessed 19 March 2014).

20. UK Border Agency, Letter from Jonathan Devereux, Head of European and Nationality Operational Policy to Sophie Barrett-Brown, Chair of the Immigration Law Practitioners Association; on file with the author.

21. England and Wales Court of Appeal (2012) EWCA Civ 1363, 23 October 2012.