Irregular Immigrants and EU Citizens: A Regularising Relationship? The Case of Ireland Alan Desmond, PhD Candidate, Faculty of Law, University College Cork Metropolis 2011

Fajujonu v Minister for Justice (1990)

- a citizen child has a constitutional right to the company, care and parentage of their parents within a family unit - non-national parents of an Irish citizen child may be deported only where there is a substantial reason associated with the common good

Irish Born Child Scheme 2005

 exceptionally important status assigned to the family by the Irish constitution  the protection of family and private life enshrined in Art. 8 of the ECHR  the requirement in Art. 3 of the UN CRC that in all actions concerning children, the best interests of the child shall be a primary consideration.

Article 41.1 Bunreacht na hÉireann 1) The State recognises the Family as the […] fundamental unit group of Society, […] possessing inalienable and imprescriptible rights, antecedent and superior to all positive law. 2) The State, therefore, guarantees to protect the Family […] as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.

“Substantial reason associated with the common good” this will depend on the circumstances of each individual case, but could include the overriding need to preserve respect for and the integrity of the asylum and immigration system this will depend on the circumstances of each individual case, but could include the overriding need to preserve respect for and the integrity of the asylum and immigration system

Article 8 of the European Convention on Human Rights 1)Everyone has the right to respect for his private and family life […]. 2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society […].

Article 3 of the UN Convention on the Rights of the Child 1. In all actions concerning children, whether undertaken by […] courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. 2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

Ruiz Zambrano v Office National de l’Emploi (C-34/09) 8 March 2011 TFEU precludes national measures which would have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by their status as citizens of the Union. A refusal to grant a right of residence to a non- EU national with dependent minor children in the Member State where those children are nationals and reside, and also a refusal to grant such a person a work permit, has such an effect.

 In order for an EU citizen child to enjoy the substance of his EU citizenship and EU Member State may not deport his or her parents. Furthermore, his or her parents are entitled to work in the Member State so as to provide for their EU citizen child