A genuine European integration
Let me say first where I see the main contribution of this judgment to the development of European citizenship. In the case-law of the Court which gave substance to this notion, EU citizenship consisted essentially in offering the nationals of the member states the opportunity to act on a transnational plane within the Union. Nationals of member states were granted rights in order to circulate freely, to be admitted in other member states and to enjoy the same treatment as nationals of the host country. They were vested with the power to address the authorities of another member state and to claim admission, residence and welfare benefits on the same conditions as the nationals of that state. This empowerment was aimed to ensure the social integration of EU citizens. The status of EU citizen has been mainly construed as a status of integration into the member states of the Union, a status of transnational integration. Now, what emerges from this case is the notion of integration within the territory of the Union taken as a whole. We move from a national or plurinational integration to a genuine European integration. The European territory as such is the natural place of life and integration for European citizens and their families.
This idea (an ideal?) comes up in relation to a specific situation exemplified by the Zambrano case. This case contains some interesting elements which are worth noting because they touch upon the general issue of migration in Europe today. Mr Ruiz Zambrano is a Colombian national who decided to leave his country of origin with his family and to seek asylum in Belgium. The Belgian authorities refused his application for asylum and subsequent applications to have his situation regularised. Despite this refusal and the absence of any resident permit, he and his wife have been registered as ‘residents’ in a Belgian municipality and he started to work regularly with a full-time employment contract. Since the rejection of his application for residence in March 2006 Mr. and Mrs. Zambrano have held special residence permits valid during the duration of the judicial action he has brought against this rejection. During this stay, Mrs Zambrano gave birth to two children, Diego and Jessica. They acquired Belgian nationality by the fact of being born in Belgium and since the parents did not take specific steps to have them recognised as Colombian nationals. This is the result of the application of the Belgian Nationality Code at the time of the case.
First point to note: their condition is typical of the condition of many migrants in Europe, who are in a transitory position, but a position which is intended to persist; they are migrants who are recognised and partially included in the administrative and economic life of the country but who are not authorised to stay in the territory. Mr and Mrs Zambrano belong to this category of people who have been provocatively labelled as ‘illegal citizens’ (E. Balibar). The second point concerns the children whose identity from a EU law perspective is twofold. First, they are dependent persons, a fragile population that cannot rely on its own resources. Arguably, the issue of the care is an important feature in that judgment. Second, they are Union citizens as Belgian nationals.
‘The territory of the Union’
Confronted with this case, the Court considers that EU citizenship law precludes Belgium from refusing Mr. Ruiz Zambrano a right of residence and a work permit. His minor children, who are EU citizens, should not be deprived of the right to stay within the territory of the European Union. In other words, deportation of European citizens to countries outside the territory of Europe is not permitted. The reference to the ‘territory of the Union’ is a central reference in the judgment. This reference is not only the metaphor which designates the sum of the physical territories of the member states. It is a normative reference which refers to a new common space, a space of distribution of rights and common values. What the Court is doing here is to recognise a status to specific categories of individuals – European citizens and the persons connected to them as dependents or care-takers. This status is attached to them wherever they happen to be, it does not depend on their physical location. It grants them rights to circulate and to occupy the European space. There is a strong normative dimension implicit in the reasoning. To reside in Europe means not only to be physically located in its territory but also to be granted a number of rights and ultimately to be under the protection of certain values of personal welfare and moral security.
Shifts in the legal theory of European citizenship
EU citizenship and mobility
The first and the most obvious shift lies in the disconnection of EU citizenship from free movement. In its first cases dealing with EU citizenship, the Court undertook to release the rights of citizenship from the economic considerations attached to freedom of movement in the realm of the internal market. The Court freed the mobility of individuals from the exercise of an economic activity. But the rights of citizenship were still dependent on mobility. This was reflected in Directive 2004/38 which codifies the jurisprudence of the Court and which states, in its preamble, that ‘Union citizenship is the fundamental status of nationals of the member states when they exercise their right of free movement’. Following the Zambrano judgment, one could say that EU citizenship is released from the mobility condition. This step couldn’t be achieved under the regime set up in the Directive and this is the reason why the Court, in the first part of its short judgment, sets aside the Directive and decides to ground its decision on the basis of Article 20 of the Treaty (concealing the fact that this provision explicitly refers to the conditions defined by the EU legislator in the Directive). On this basis, the Court is able to state that the sole presence of a Union citizen in a member state, even if this member state is his/her country of origin, is liable to trigger ‘European’ protection. The right of residence of the children is sufficient on its own to grant residence to the parents who take care of them. There is not even the need to refer to the fundamental rights of the children, their right to family life. The dispute is entirely settled on the basis of the statutory right of residence of the children.
The status of EU citizen
Another important change concerns the reference to the ‘status’ of citizen of the Union. The Court proclaimed that “Union citizenship is destined to be the fundamental status of nationals of the member states” for the first time in the Grzelczyk case in 2001. This formula enabled the Court to broaden the scope of application of the principle of non-discrimination on the ground of nationality. Since then, in each case where this reference was introduced by the Court (Baumbast, Garcia Avello, Zhu and Chen, Commission v. Austria), it has always had a residual and procedural function: it was used to legitimise a comparison between nationals and non-nationals, as an argument to say that, if they are ‘Europeans’, the latter should enjoy the same treatment irrespective of their nationality (Commission v. Austria, C-147/03). In that case, as already in a previous one (Rottmann, C-135/08), the reference to the status plays a prominent role that differs somewhat from earlier decisions. It is presented as the real source of the rights and duties conferred to EU citizens and to their family members. The consequence is that the status in itself has to be protected in order to protect the rights attached to it. These rights refer to the rights of citizenship (movement, non-discrimination, social integration) but one can also see a reference to the fundamental rights protected under the Charter and the ECHR. If taken seriously, the combination of citizenship and fundamental rights would have far-reaching effect in the broadening of the scope of application of EU law.
The issue of competences
An important part of this short judgment is devoted to examining the possible consequences of not granting the right of residence to the parents. The Court relies on an ‘argument from consequences’. The use of this argument is interesting and must be put into context. First of all, this is a response to the argument put forward by the Irish government before the Court, the ‘floodgates’ argument that the granting of a right of residence is liable to lead to ‘unmanageable results’, to a loss of control over immigration flows. The Court has already responded to a similar argument in a previous case, the Metock case (C-127/08). It argued that “the refusal to grant a right of entry to the family members of a Union citizen would be such as to encourage him to leave in order to lead a family life in another member state or in a non-member country”. In Zambrano, the Court states similarly that “a refusal to grant a right of residence and a work permit to the father would lead to a situation where the children would have to lead the territory of the Union”. In such reasoning, the argument from consequences in terms of individual rights prevails over the argument from consequences in terms of state control of immigration. Note however a shift between Metock and Zambrano. In Metock, the Union citizens involved had circulated within the Union: the recognition of a Union competence to regulate the conditions of entry and residence of third-country nationals was based on the need to protect the freedom of movement of European citizens. In Zambrano, the children haven’t circulated within the Union. The EU competence over the domestic competence in the field of immigration is therefore considerably widened to cover the non-mobile citizens.
Classifications and re-classifications
The main consequence of the case is the transformation of the status of Mr. Ruiz Zambrano. From asylum seeker, he becomes a ‘quasi’ European citizen. From transitory residence and illegal status, he gets permanent and legal residence. Not only that: the Court enables him to be granted a work permit in Belgium, to be socially integrated in this country. This case illustrates the commutability of personal statuses in Europe. The Union has multiplied the statuses conferred to migrants. These statuses are more or less protective. This inevitably fosters a phenomenon of re-classifications based on EU law and a phenomenon of self-re-classifications by the migrants themselves.
The second point concerns the exportability of this solution to other types of situations. Is it a case of ‘care’ limited to situations concerning dependent persons like children? Or is it a solution which can be transposed to adults having family members outside the territory of the Union? One has perhaps to distinguish, depending on the issue at stake. In the judgment, the granting of a right of residence is based exclusively on the risk of discouraging the citizen from residing on the territory of the Union; this could equally apply to adults. The issue of work permit is a different matter. It is directly related to the necessity to take care of the children-citizens. It seems that this part of the judgment is limited to care-takers.
Union citizens as Europeans
The last point concerns the ‘invention’ of the status of Union citizen. European citizenship has so far been presented as a means “to strengthen the protection of the rights and interests of the nationals of member states” (Art. 2 of the former Treaty on the European Union). The idea was to protect their rights against potential discrimination on the part of authorities of the member states. Now, this case highlights another dimension of European citizenship, namely the protection of the rights of Union citizens as genuine ‘Europeans’ committed to the European Union, its territory and its common values, and not only to the member states. A deportation from this territory would amount to an “expatriation”. It is not by chance that this case benefits mainly a non-European, Mr. Ruiz Zambrano, a Colombian national. This shows the willingness of the Union to develop its own boundaries between individuals, its own notion of membership. The case challenges the theory of defining the European citizenship by reference to the nationals of member states who circulate within the EU. The theory is required to include individuals whose mobility can be limited and nationals of non-member states who contest the borders of Europe set up by the member states.