Citizenship of a child and related rights for the undocumented parents by Johann Morri

On March 8, 2011, the Court of Justice of the European Union (the highest Court of the European Union legal system, in charge, among other things, of interpreting European Union law) issued an important opinion on the issue of citizenship, immigrant’s rights and children rights ( C-34/09 Ruiz Zambrano v Office national de l’emploi (ONEm), full text available on : http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=EN&Submit=rechercher&numaff=C-34/09)).

The question submitted to the Court by a Belgian tribunal was whether the fact that a child is a citizen of the European Union (from example because he was born in a country applying jus soli) confers a right of residence and a right to work to his non-citizen parents.

The case involved the two undocumented Columbian parents of a minor child born in Belgium. Under Belgian law, the child was a citizen at birth. In the European Union legal system, citizenship of the Union follows automatically the citizenship of a member state. The plaintiffs claimed that by refusing them the right to reside legally and to work in Belgium, and de facto constraining them to leave the European territory or to be separated from their child, the Belgian authorities were depriving their child of the rights he is entitled to as a citizen of the European Union.

The Court holds that a citizen of the European Union cannot be deprived of the “of the substance of the rights” attached to such a status, and that when this citizen is a child, the “genuine enjoyment of these rights” implicates that his parents are allowed to live and work in the same country.

This judgment has significant practical implications. Although some European countries already recognize a right of residence to the non-citizen parents of a citizen-child (France, for example), the Court decision will probably mean that every state of the EU has to allow such rights.

Of course, the impact of such a holding is much more limited in Europe than it would be in the USA. Only a few European countries grant citizenship by jus soli, and usually upon other conditions (for example, in France, the child born on French soil only becomes a citizen after a certain period of presence, generally at 18 –unless his parents are also born in France, in which case he is automatically French at birth). But the situation where a child born of a non-citizen is granted citizenship at birth is not a rarity either (for example, when the one of the two parents if a citizen, and transmits his/her citizenship by jus sanguinis).

More generally, the European Court could be a landmark case on the significance, content ant theory of citizenship. Its reasoning may inspire other national or international courts faced with the following question: what does citizenship mean? What are the “core” rights and duties stemming from the status of citizen, and without which citizenship is a meaningless concept, deprived of its practical significance? One remembers the famous quotation of Earl Warren according to which citizenship is “the right to have rights.” The related question, of course, is to define which “rights”. By its judgment in the Ruiz Zambrano case, the Court decides that, when it comes to the situation of a minor child, these rights cannot be properly exercised if the parents of the infant are deprived of the possibility of residing legally with their child, and to earn a living.

NB:  In the European Union system, courts of member-states are allowed –and sometimes required- to submit to the Court of Justice of the European Union (former European Court of Justice) difficulties of interpretation of European union law. The Court then issue a “preliminary ruling”, binding for every court of a member state.

Johann Morri is a LL.M. (2010-2011) student at UC Davis School of Law