In early March the ECJ ruled in just such a case, in what is a milestone case on citizenship, in Zambrano. Not that you would have read about it in the media. In fact I only read about it in The Irish Times, which covered the case and the subsequent reaction of the Irish Government. The excellent Verfassungsblog covered it in German. Zambrano is a landmark case as it strikes a blow against reverse discrimination (the idea that Member States can give fewer rights to their own citizens than to EU ones from other Member States), and it could have an effect on immigration and national citizenship laws. So here are my own belated thoughts on the case - as with all court stories, it will require some side-stories to give it context, but I hope the human interest element will keep it interesting, and that it will provide some insight into how the Court can act and think.
Ruiz Zambrano and his wife , Moreno, left their home country of Colombia in 1999 for Belgium. They were looking for asylum as Ruiz had been subjected to 2 years of extortion demands, backed up by death threats, by private militias, and had witnessed assaults on his brother and his 3-year-old son had been kidnapped for a week in January 1999. Their application for asylum was refused, but a non-refoulement condition was attached - Belgian authorities could not send them home as the civil war situation in Colombia was too dangerous. Ruiz Zambrano worked in Belgium without a work permit, but he paid taxes and social security contributions. He was fired from his job as he didn't have a work permit, and he wasn't allowed unempolyment benefit as the work he had done, and contributions he paid wouldn't count as he never had a work permit. In addition, with the deportation order hanging over the family's head, it took years of legal challenges to get even a temporary residence permit. In the meantime the couple had 2 children, who had Belgian citizenship (and therefore EU citizenship) under Belgian law.
If the 2 children had been EU citizens from another Member State, they would have been protected by EU law, and their parents would have been allowed to live and work there while they were still children without permits. Even as Belgian citizens, they could have the protection of EU law if they had used their free movement rights (e.g. moving to another EU country for a while) at some point in the past, but as they had never left the country of their nationality, it appeared that Belgian law would discriminate against its own citizens. So the Belgian court essentially asked the ECJ: does EU law protect against such discrimination, and if so, would the Zambrano parents be entitled to stay and work in Belgium without the relevant permits as the carers of EU citizens?
Yes, the ECJ said, since without the right to live and work in Belgium, they (the children with citizenship) could be removed from the Union to remain with their parents if they were ejected from the country. By being removed from Belgium (or risking that removal), the children:
"... [would be deprived] of the genuine enjoyment of the substance of the rights conferred by the virtue of their status as citizens of the Union." [paragraph 42]
A victory for equality of all EU citizens before the law! Um, well, actually, not necessarily. In fact, it's a bit unclear how far reverse discrimination has been ruled illegal. What is the "substance of citizenship rights"? The ECJ hasn't mentioned it before, and it didn't explain it in its judgment. There were also 2 arguments that would have had the same effect for the Zambrano family, but different effects for other EU citizens, and it's not clear which one the ECJ accepted.
Back to the Future Citizenship
Here's where EU citizenship becomes more messy and complicated. There's a Citizen's Directive (Directive 2004/38/EC), which grants rights to EU citizens living in another Member State other than their own, and which expressly says that it does not apply to citizens living in their own Member State. The ECJ has got around this in the past by finding an EU law angle. So in Surinder Sigh, a non-EU national married a British citizen, and they then moved to Germany to live and work there until they moved back to the UK. When they moved back, his wife wanted to divorce him, and the UK tried to deport him before they were divorced. The ECJ said that it would render the right to move and work in other Member States unattractive if the spouses of citizens could be deported when they came back - however, once the divorce is final, then third country nationals no longer enjoy the rights of a spouse of an EU citizen.
In the Zambrano case there was no movement, but the ECJ may be protecting the potential exercise of EU rights by the children citizens. It's done this before in Rottmann, where an Austrian citizen living in Germany lost his citizenship of Austria when he gained German citizenship. The problem was that he hadn't disclosed all the necessary information on his application for German citizenship, and the German authorities decided to remove German citizenship from him - which would have left Janko Rottmann stateless. The ECJ stepped in and said that it was up to the Member States to decide when citizenship was granted, but they re prevented by EU law from unilaterally withdrawing it (and therefore Rottmann's German citizenship in this case) were it would result in a citizen not being able to exercise any of his or her rights. So a citizen could rely on their EU citizenship to protect thagainst their own Member State if they would be deprived of all potential future use of those rights.
The problem with the "Back to the Future Citizenship" is that it's messy and unclear when someone is covered and when they're not. Under UK law if a British national marries a third country national and wants to bring them home to the UK, and they haven't used their EU free movement rights, then they have to pay to get them into the country. So other EU nationals and British nationals who have used their free movement rights have preferential treatment over British nationals who never used their free movement rights. It is unlikely that, under the Back to the Future model, that that British citizen could claim that they wouldn't be able to use their EU rights effectively in the future if their spouse couldn't join them in the UK, so they wouldn't be covered by EU citizenship law.
Civis Europeus Sum - I am a European Citizen
While the Citizen's Directive doesn't apply to EU citizens living in their own country, the Treaty articles on citizenship and the prohibition of discrimination on the basis of nationality (Articles 18 & 20 TFEU) are, in legal jargon, "directly effective". This means people can rely on them without extra laws being passed by the EU or Member States.
Article 20 TFEU gives EU citizens the right to "move and reside freely within the territory of the Member States". The second method is perhaps an example of law being almost laughably technical, because it depends on how that "and" is interpreted. If you have to both move and reside, then you have to use free movement rights and the Back to the Future model applies. If you have 2 separate rights - to move and to reside - then citizens living in their own Member State would have a right to reside there under both their national citizenship, and their European citizenship. Then the non-discrimination clause would mean that they could not be "reverse discriminated" against by their own Member State!
This is the method proposed by British Advocate-General Eleanor Sharpston in her Opinion on the case. It would mean that just by living in the EU - anywhere in the EU - a citizen would be under the same protection as other EU citizens, and rights would not be dependent on complicated legal reasoning.
What was the Court thinking?
You can't really tell which of these the Court supported in it judgment, but it still wanted to help the Zambranos. It's not good enough, however for a Court to be so unclear about what the law is. As the Court cannot give the separate reasonings of the different judges, but only a single court judgment, there may have been a compromise to fudge the issue and not take Sharpston's more radical proposal.
However, I don't want to leave you with the impression that it's only the ECJ that influences the development of EU citizenship. The only reason a Belgian court asked the ECJ in the first place is that the Belgian constitutional court had held that reverse discrimination was not permitted, setting how EU law should work in the area into doubt.
Zambrano was a big step for EU citizenship, but it will be a long time before we know what it really means.