Small paper

Hi all, I have to write a small essay, could you please check any grammar mistakes? thank you very much This forum is really useful for non native speakers

Story:



Gerardo Ruiz Zambrano and his wife, Mrs Moreno Lopez, are both Colombian nationals who came to Belgium on 7 April 1999.

There they asked for Asylum because it was impossible for them to return to Colombia, where they had been exposed to death threats and his son was abducted for a week by private militias.

The Commissariat-general for Refugees and stateless persons rejected Mr Ruiz Zambrano application, asking him to leave the country. Afterwards Mr Ruiz Zambrano requested several times a residence permit but all of his applications were refused. While he and his wife were illegal in Belgium they had two children, Diego in 2003 and Jessica in 2005, that acquired Belgian nationality.

In October 2005 and in October 2006 Mr Ruiz Zambrano asked for an unemployment subsidy since his job contract was temporarily suspended. Both times he was refused the payment of the benefit because he had been employed without a work permit. Mr. Zambrano challenged these decisions and brought the case before the Tribunal du travail de Bruxelles. Mr Zambrano claimed that because he is ascendant of two minor children who are nationals of a Member State, he can enjoy the derived right of residence and so the unemployment benefit by virtue of EC treaty. Moreover if he does not receive a residence permit and consequently the possibility to work, he should be forced to leave Europe with his children, depriving them the possibility to use and activate their rights as citizens of the Union. During their permanence in Europe, the family never moved to another member State. So the Belgian court asked ECJ if Mr Ruiz Zambrano, parent of two European underage citizens that reside in the same country of their nationality, has the right to stay in Belgium and to receive an unemployment benefit.

Analysis of the case:

1. Scope of application:

- Personal scope of application: in this case the court looked on the two children, Diego and Jessica, Belgian nationals, that could have lost the possibility to use their European rights. Consequently the personal scope of application is fulfilled because being the two children Belgian they are automatically European citizens.

- Material scope of application: All the governments that submitted opinions and the European Commission argued that this case was not in the competence of ECJ, since the two children never activated their European rights because they never left the territory their home country. Despite these observations the ECJ decided that in cases of children there is an exception in order to protect them. So if a child is involved it is not needed that the child should have moved to another member state to activate his/her rights. The possibility that he could be deprived of his/her European rights is enough to fulfill the material scope of application, even if the child resides in the country of his/her nationality.

1. Conflict: The conflict is between EU law and national law. In this case the EU treaty precludes national measures that deprive citizens of the union to enjoy their European rights. Consequently the Belgian national practice that refuse to give the residence permit and the unemployment to a third country national that is a parent of underage European citizens has the effect to deprive the children, European citizens, of their rights.
2. Exception: in this case there are no exceptions, because the Belgian practice is neither for general interest nor proportionate. Since the two conditions for exception are not fulfilled, the EU law prevails.

Conclusion of the court:

The Court obliged Belgium to give a residence permit and the unemployment benefit to Mr Ruiz Zambrano. Otherwise the two children, citizens of the Union, should have left the EU territory in order to accompany their parents, that were either without the residence permit or without sufficient economic resources to live in the EU. This judgment has been taken in order to remove the possibility that the two children were unable to exercise the substance of their European rights. Going further it means that illegal parents of an underage European citizen can enjoy the right to live in an member state and to receive subsidy, in order to protect rights of the minors.

Personal Comment:

This is a revolutionary case. Indeed the ECJ has created, on the wake of other cases such as Texeir and Ibrahim, a big protection for European children that embraces also the parents, even if they are illegal migrants.

Moreover it also created an exception in the rule of activation of European rights, that protects the rights of an underage European citizens even if they have not been activated through a change of residence in another member state.

This huge protection to children, reached by arguments from consequences, is very advanced and parallel to UNESCO Convention on the Rights of the Child, where the superior interest of the child has the priority, in fact probably without this judgment the family would have gone to Colombia, where the first son of the couple was abducted.

In my opinion, putting this exception into the material scope of application, ECJ has taken the right decision. More specifically now the rights of European underage citizens are more protected since their parents, that are actually linked to the life and the location of their children embrace the right to stay and work in the EU