Human rights – a topic so common and widely-spread since the historical events from World War II. They scarred the entire world, propelled it onto the global stage and later into the global conscience. Yet it causes a misconception to a mind, unaware of the hard process that protecting what matters the most is. The Zambrano case (C 34/09) is a milestone and a step of highest importance towards the reverse discrimination issue in the field of rights, derived from the European citizenship.
Gerardo Ruiz Zambrano is the Colombian citizen, who wrote history and shook the EU legal world to its core. On 14 April 1999, Mr Zambrano, at the time holding a visa, issued in Bogota, applied for asylum in Belgium. His wife, also e Columbian citizen, followed his actions. The Belgian authorities declined their applications and ordered them to leave the country. However, the order included a “non-refoulement” clause, stating they should not be sent back to their homeland, due to the on-going civil war.
“Non-refoulement” – a fundamental principle of international law, which forbids a country, receiving asylum seekers, from returning them to a country, in which they are liable to be subjected to persecution.
The initial steps of integration
On the verge of desperation, in October 2000, Mr Ruiz Zambrano tried to legalise his residence in Belgium. His application was in reference to the inability to return back to his homeland with his family, regarding the on-going and worsening conditions there. The emphasis was on making their best as family to integrate in the society. This included learning French and signing his child to a local pre-school. In addition, there was a post-traumatic syndrome Mr Ruiz Zambrano had suffered, regarding his child’s abduction in Columbia, prior to their departure.
Although he did not have a work permit, Mr Ruiz Zambrano had to provide for his family. He signed an employment contract to work full-time for an unlimited period of time. The income he received was sufficient for his family’s needs. All of it was according to the applicable scales, with the proper deductions for employer contributions and social security. Later on, the family welcomed to the world their second child, who, pursuant to Art. 10(1) of the Belgian Nationality Code, acquired Belgian nationality. The Colombian legislation does not recognize nationality for children, born outside the territory of the country. Especially when the parents do not follow specific actions to have them so recognised.
In 2004, Mr and Mrs Ruiz Zambrano once again applied to regularise their situation. This time, they put forward as a new factor the birth of their second child. The family relied on Art. 3 of Protocol 4 to the ‘ECHR’, preventing their child from being forced to leave the State, of which he is a national. Following the birth of their third child in 2005, who also acquired Belgian nationality, the family lodged an application once again. This time they tried to take up residence in their capacity as ascendants of a Bulgarian national. Luckily, they received a certificate of registration, covering their residence until February 2006.
Labour market collision
Meanwhile, the suspension of his contract on economical grounds lead to him applying for unemployment benefit, which was rejected. The refusal by the Belgian Office to grant him unemployment benefits was in violation of Belgian legislation. The Aliens’ Office confirmed, that the applicant and his spouse cannot pursue any employment. Although, no expulsion measures could be taken against them, while their application was under consideration.
In 2007, the family was notified, that the application to regularise their situation was rejected. The Aliens’ Office informed them, that they had to reintroduce the action for review in the form of an action for annulment. Mr Ruiz Zambrano brought such an action before the Council for asylum and immigration proceedings. It was based on the non-existant “legal engineering”, of which he had been charged. He claimed, that the acquisition of Belgian nationality of his children had nothing to do with his actions. On the contrary, it was solely based on the application of the Belgian legislation. He also alleged infringement of art. 2 and art. 7 of Directive 2004/38, as well as art. 8 of the ECHR.
The Belgian Government states before the Court that, since 30 April 2009, Mr Ruiz Zambrano has had a provisional and renewable residence permit. He should have a type C work permit, pursuant to the instructions of the Minister for immigration and asylum policy relating to the application of the former. Mr Ruiz Zambrano challenges the argument before the Court, that he has the right of residence by virtue of the EC Treaty on the one hand. On the other hand, he can rely on the right of residence for the ascendants of a minor child, a national of a Member State [Case C-200/02 Zhu and Chen]. Therefore, he is freed from the obligation to hold a work permit.
To preliminary ruling and beyond
By its questions, the referring court asks how to interpret the provisions of the TFEU on European Union citizenship. In this case, it is about a third country national relative in the ascending line, upon whom his minor children, EU citizens, are dependent. The applicant’s children had never lived outside Belgium or exercised freedom of movement. If article 20 of the FEU Treaty was not applicable to them, their parents would not be able to remain in Belgium. The children, still depending on them, would have to leave too. This would have created a problematic discrepancy between the status of “static” citizens and those who can find some external element in their personal history, as was the case in Zhu and Chen.
In a nutshell
Instead of restricting the applicability of EU law to persons who exercise their freedoms of movement, this ruling represents an important step towards recognizing a real, coherent status for citizens of the Union. It also shows the contradictions in our immigration policies. This Columbian citizen worked in Belgium for six years, during which his income went through social security deductions. Two of his children were born in that country and had always lived there. The requirement of movement within the EU would have resulted in these children not being able to exercise their rights as citizens of the Union, which seemed unfair.
After becoming familiar with the Zambrano saga, we might have answered a few unasked questions. Apart from the legal frame and terms, this story is all about a family, not trying to circumvent the system or find a loophole in it. On the contrary, a family, whose only purpose was to claim what was righfully theirs – their human rights.