Birth citizenship & Ireland

(Delighted to welcome back alumna Siobhán Mullaly, who contributes this guest post)

The primacy given the protection of the family in Irish constitutional law has frequently been invoked as a marker of Ireland’s distinct national identity, most recently in debates on the ratification of the Lisbon Treaty and constitutional reform in the European Union. Despite the apparent strength of these protections, however, migrant families, including those with Irish citizen children, have found themselves repeatedly denied the core protections of private and family life, including the right to remain in the State. In a series of cases in the Irish courts (right), the limits of citizenship in securing the right to be ‘part of the Irish nation’ (Article 2 of the Constitution) have been revealed.
The rapid increase in inward migration to Ireland at the start of the new millennium (now sadly reversed), led to increasing controversy surrounding the right to citizenship by birth. As the numbers of families claiming residence rights on the basis of having Irish citizen children increased, political pressure to deny these claims grew. In 2003, the Supreme Court, in the L. and O. cases, dismissed an appeal from the third country national parents of Irish citizen children, who were challenging their pending deportation from the State. Distinguishing earlier case-law, the Court concluded that requirements of the common good, including the need to preserve the integrity of the asylum and immigration process, could justify justify the deportation of a parent of a citizen child and a denial of the child’s right to the care and company of their parents in the State. At the time, more than 11,500 applications for residence were pending from third country national parents, with Irish citizen children.
The Supreme Court judgment, however, did not stem the tide of inward migration. And so, just one year later, the L. and O. cases were followed by a divisive constitutional referendum, which led to the imposition of restrictions on the right to citizenship by birth. Questions remained, however, as to how to address the position of the many Irish citizen children who might now face ‘de facto’ deportation along with their third country national parents. In January ’05, the Government introduced the Irish Born Child (IBC ’05) scheme, to assess applications for residence from third country national parents of Irish citizen children, born prior to Jan ’05. The majority of the applications under the IBC ’05 scheme were granted. A small minority, however, led to refusals and to a series of cases challenging the scheme’s compliance with article 8 of the ECHR, with EU law and with Irish constitutional law.
In Bode v Minister for Justice Equality and Law Reform (2007), the Supreme Court controversially concluded that ECHR and constitutional rights claims did not have to be considered when assessing applications under the IBC’05 scheme, and would only arise in the context of deportation proceedings. The Court found that a decision to grant residency within Ireland on the basis of the IBC ‘05 Scheme was a mere ‘gift,’ extended by virtue of the benevolent and ‘generous’ exercise of executive power. The Supreme Court reversed the earlier findings of the High Court, where Justice Mary Finlay Geoghegan found that the failure to consider the citizen child’s personal rights and right to private life was a breach, both of the constitutional protection of personal rights and article 8 ECHR. Citing Sisojeva v Latvia (Eur. Ct. H. Rts. 2007) , she concluded that the right to private life gave rise to positive obligations on the part of the State to ensure the effective exercise of the child’s rights. The rights guaranteed by article 8, she said, must be ‘practical and effective.’ Given the tender age of the children in the test cases before the Court, she concluded that the State had a positive obligation to grant permission to the parent to remain in the State.
The relational understanding of rights implicit in Finlay Geoghan’s judgment did not, however, find support in the Supreme Court. Neither has it, until now, found support in subsequent case-law. An ‘insurmountable obstacles’ test continues to be relied upon by the Irish courts, to determine whether or not the parent of an Irish citizen can be lawfully deported. Currently there are several cases pending before the High Court involving deportation proceedings against third country nationals, who are parents of Irish citizen children. Two recent judgments are likely to have a significant impact on these proceedings:
► The first is ZH (Tanzania) v the Secretary of State for the Home Department, an 11 February 2011 judgment of the UK Supreme Court (left), in which Lady Brenda Hale, giving the lead judgment in the case, found that in making the proportionality assessment under article 8, the best interests of the child must be a primary consideration. This, she said, ‘means that they must be considered first.’ Notably Lady Hale cited directly from Jacqueline Bhabha’s essay, 'The "Mere Fortuity of Birth"? Children, Mothers, Borders and the Meaning of Citizenship,’ to support her conclusion: ‘the fact of belonging to a country fundamentally affects the manner of exercise of a child's family and private life, during childhood and well beyond.’ In contrast to the Irish courts, Lady Hale emphasised the intrinsic importance of citizenship, including the value of ‘growing up and being educated’ in one’s own country, and pointed to the increasing emphasis on the child’s best interests in the Strasbourg case law, including in Uner v Netherlands (2006), Maslov v Austria (2007), and da Silva, Hoogkamer v Netherlands (2006). She also noted that in the context of immigration, the requirements of the ECHR must be interpreted in harmony with the general principles of international law, including those set out in the UN Convention on the Rights of the Child.
► The second significant development is the Zambrano judgment handed down by the European Court of Justice (right) on March 8 of this year. The Zambrano judgment has direct and immediate implications for Ireland’s practice to date in allowing de facto deportations of citizen children. What is notable about the Zambrano judgment is the willingness of the ECJ to go beyond the protections of family life afforded by the Irish courts. The Zambrano judgment did not, in fact, engage with arguments concerning family life or family unity. The judgment of the Court, instead, focuses on the ‘cardinal value of citizenship’ – the right to live and remain in the State of which one is a national. As in the 2004 Zhu and Chen judgment, the ECJ recognizes the network of relationships into which a child is born, and the dependency and vulnerability of a child. Going substantially beyond the Irish courts, the ECJ in both Chen and Zambrano recognizes that a child’s state of dependency requires the presence of his or her parents, so as to ensure the effective enjoyment of the rights associated with citizenship of the Union, as protected by Article 20 of the Treaty on the Functioning of the European Union. Questions remain as to how dependency will be interpreted, and of course, what will be the ‘push back’ from Member States of the EU, many of whom, including Ireland were watching these proceedings closely.
Predictably, the Zambrano judgment has given rise to much commentary in Ireland. It is to be hoped, at least for now, that it will finally bring home to Irish courts, the significance and meaning of a child’s citizenship and attachment to the State.

'Nuff said

(Taking context-optional note of thought-provoking quotes)

Thus, Europe is 'blessed' with two distinct but closely related fundamental rights treaties supervised by two independent European courts -- the European Court of Human Rights and the [European Court of Justice]. It remains to be seen how these two fundamental rights systems will interact with each other and how they will accommodate possibly divergent or conflicting jurisprudence.

--Netherlands-based scholar Dr. Nikolaos Lavranos, in his ASIL Insight tracing the history, evolution, and future of efforts to constitutionalize regional integration in Europe. The 2 treaties to which he refers are: respecting the ECtHR, the 1950 Convention of Human Rights, and respecting the ECJ, the 2000 Charter of Fundamental Rights of the European Union, rendered binding by the December 1 entry into force of the Lisbon Treaty, on which we've posted.

Judicial review for Europe's implementation of Security Council's terrorism sanctions regime

Check out the new ASIL Insight by Dr. Miša Zgonec-Rožej, analyzing a recent decision in which the European Court of Justice set aside the freezing of funds said to be linked to terrorism.

In the wake of the terrorist attacks of September 11, 2001, the U.N. Security Council set up a regime by which members are to sanction individuals and entities linked to al Qaeda and other terrorist networks. Under ECJ review in Kadi (ECJ 2008) was a Council of the European Union regulation that froze funds of 1 individual, Saudi national Yassin Abdullah Kadi, and 1 entity, the Sweden-based Al Barakaat Foundation. (credit for photo of ECJ building in Luxembourg)

Overruling the Court of First Instance below, the ECJ invoked the fundamental rights guarantees of European Community law to rule that it had jurisdiction to review the lawfulness of the governmental action -- that is, the EU measure implementing the Security Council guidelines, but not any action of the Security Council itself. Specifically, the EU measure infringed rights to have notice of adverse state action, to be hearing, to effective judicial review, and, ultimately, the right to property.

It is the 1st such action by any international or regional court, notes Zgonec-Rožej, who's served at the International Criminal Tribunal for the former Yugoslavia and at the International Court of Justice. Zgonec-Rožej points out that that compliance with the ECJ's judgment could entail the violation by European countries of Security Council measures. To avoid this, she recommends, the Security Council "might consider introducing necessary improvements, thereby avoiding undermining the authority and effectiveness of the anti-terrorist sanctions regime."

Irish High Court suggests Article 8 European Convention rights for same-sex couples

The Irish High Court yesterday handed down judgment in a case involving a man who had donated sperm to a lesbian couple on foot of an agreement between them that, while he was to have ‘favoured uncle’ status, he was not to be involved in parenting in any way. Once the baby was born the donor attempted to play a parental role, including by acquiring an injunction to prevent the couple and their child from travelling to Australia for a year. Yesterday Mr Justice John Hedigan held that the man has misled the couple as to his true intentions and had nothing more than a biological connection with the child; the child and his mothers, on the other hand, could be said to constitute a family within the meaning of Article 8 of the European Convention on Human Rights. Justice Hedigan recommended legislative action in relation to same-sex couples in Ireland including provisions relating to situations where a couple may wish to parent and for one of them to bear a child. The judgment appears not yet to be available online, but the RTE News report is here.
The judgment is significant not only because of its timing (the heads of a proposed Civil Unions Bill are expected to be released by the Irish government shortly), but also because Justice Hedigan’s holding that the couple and their child could enjoy the right to family life under Article 8 is an advancement of the jurisprudence of the European Court of Human Rights on whether same-sex couples with or without children can be regarded as ‘family’ under Article 8.
The Strasbourg-based court (below right) has not yet definitively considered whether a same-sex cohabiting couple constitutes a unit entitled to respect for their family life under Article 8 (although in cases such as Karner v Austria (2003) it has protected same-sex couples under the rubric of privacy). In an earlier decision of the European Commission of Human Rights (an entity since consolidated with the court), it was held that the relationship between two women and the child of one of them did not constitute family life. In Kerkhoven & Hinke v Netherlands (1992), the Commission had noted that there was no legal impediment to the three living together in the Netherlands but acknowledged that the difficulty lay in the non-biological parent establishing legal links with the child. The Commission acknowledged that such a legal relationship would have important practical implications for the child and non-biological parent, however they felt that the fact that the relationship between the two women did not constitute family life meant that there was no obligation on the state to allow the establishment of such a legal relationship. As Kerkhoven was a Commission decision, as opposed to a decision of the Court, the reasoning is not greatly elaborated upon. In fact little or no justification is offered by the Commission for this conclusion.
Kerkhoven again arose for consideration, however, within the context of X, Y & Z v United Kingdom (1997). This case concerned a family unit comprising a woman, her biological child and a post-operative female-to-male transsexual. The couple had been together since 1979 (just before his gender realignment surgery) and the child was born in 1995 (after the gender-realignment surgery). The child had been born by means of artificial insemination which, after some substantial effort on the part of the couple, had been provided and funded by the National Health Service. X had attempted to be registered as the father of the child on his birth certificate but was informed that only a “biological man” could be so registered. This application claimed that this decision was a breach of the unit’s right to family life, particularly given the practical benefits of such legal recognition of the relationship between X and the child (whose birth certificate was left blank under ‘father’). The Government first claimed that no family life existed between the couple as they were to be regarded as two women living together. The Court considered that X and Y could not be considered as two women living together as they lived, socially, as man and woman and, as a result, apart from the legal prohibition on marrying their relationship was indistinguishable from that between a man and a woman. In the circumstances, and in particular with regard to X’s involvement in the AID process from the beginning and the close and de facto personal ties enjoyed between the three applicants, the Court found that they could be regarded as a unit deserving of protection for their family life. Significantly the Court did not substantially revisit Kerkhoven in this decision, rather it focused on the three together and the social reality of the relationship between the couple. In the end the Court held that there had been no violation of Article 8 by precluding the registration of X as father on he birth certificate because of the transitional stage of the law, the lack of a sophisticated personal identity register system in the UK and the relative unimportance of a birth certificate in legal terms.
These decisions, however, took place against a very different politico-legal background to the one currently in existence in the Council of Europe – nowadays a great number of COE states have some kind of legislative framework concerning the rights of same-sex couples and, in some cases, any children they may be raising and the visibility of same-sex families and ‘gay parenting’ is much increased. In addition, the European Court of Justice (left), the Luxembourg-based court of the European Union, has recently expanded the recognition of same-sex couples, including in the context of pension entitlements, where the partners “live in a union of mutual support and assistance which is formally constituted for life” (Maruko, 1 April 2008). Taking into account the margin of appreciation and the importance in ECHR jurisprudence of the emergence of ‘consensus’ across much of the COE member states, the conclusion that appears to have been reached by Justice Hedigan yesterday would likely now be reached by the Strasbourg Court in an analogous current case.

(This is cross-posted from the blog of the Centre for Criminal Justice and Human Rights, Faculty & Department of Law, University College Cork, Ireland)

Comparative Courts 101. Prof: Ginsburg, J.

Justice Ruth Bader Ginsburg (right) gave a no-doubt-unexpected lesson in comparative judicial studies during a lecture last week at an Atlanta synagogue. In "The Role of Dissenting Opinions," she noted that the U.S. Supreme Court's "practice of revealing dissents ... is hardly universal." Describing "civil law tradition that holds sway in Europe, and in countries once controlled by a continental power," and in the European Court of Justice, she said:

[C]ourts issue a collective judgment, written in an impersonal style. The author of the judgment is neither named nor otherwise identifiable. Disagreement, if it exists, is not disclosed. That pattern prevails without exception in French tribunals ....

In contrast, in the

British common law tradition ... there was conventionally no 'opinion for the court; disposing of a case under review. Instead, the judges hearing the matter composed their own individual opinions which, taken together, revealed the court's disposition.

Those opposite poles have shifted somewhat, most notably in the "European Court of Human Rights," which "publishes signed dissenting opinions," she said.

Ginsburg then turned to the "middle ground" position of the U.S. Court. Early on it,

like the House of Lords, Britain's highest tribunal, issued seriatim opinions. Each Justice spoke for himself whenever more than a memorandum judgment issued. But John Marshall, ... Chief Justice..., thought that practice ill-advised. In its place, he established the practice of announcing judgments in a single opinion for the Court, which he generally wrote himself. Opinions that speak for the Court remain the custom today. But unlike courts in civil law systems, and in line with the British tradition, each member of the Court has the prerogative to speak out separately.

Though she allowed that "[w]hat is right for one system and society may not be right for another," Ginsburg made clear that the practice of dissenting is right for judges in the United States. Thus did she set herself expressly at odds with Chief Justice John G. Roberts' stated preference for unanimity, and thus did she defend the 2 instances last Term (1, about which we've posted, was the abortion case Gonzales v. Carhart) that she took the rare step of announcing her dissent from the bench.

Hard landing for Microsoft

The big news in international trade is yesterday's judgment in Microsoft v. Commission, in which the Grand Chamber of the of the Court of First Instance of the Court of Justice of the European Communities largely sustained a 2004 European Commission ruling that Microsoft, the U.S.-based high-tech giant, had "abus[ed] its dominant position" in violation of the Treaty Establishing the European Community. In a decision that spanned nearly 1,400 paragraphs, the Court of First Instance agreed, thus affirming the fine of 497 million euros, or $690 million. That's pocket change to Microsoft; of longer-lasting effect will be what the company has to do to comply with European regulators like Dr. Neelie Kroes (above right, #59 on Forbes' powerful women list), the European Commissioner who led the challenge.
Comprising the Grand Chamber were President Bo Vesterdorf (Denmark) and 11 other Judges, among them 4 women: Ingrida Labucka (above left, from Latvia), Maria Eugénia Martins de Nazaré Ribeiro (above center, from Portugal), Irena Wiszniewska-Białecka (right, from Poland), and Virpi Tiili (left, from Finland).
The judgment was unanimous, of course: unlike the European Court of Human Rights and many common law courts, the ECJ follows a civil law tradition that disallows dissenting or concurring opinions.