Using the Citizen to Bring the Refugee In: Gerardo Ruiz Zambrano v Office national de l'emploi (ONEM)
| Author | Iyiola Solanke |
| DOI | http://doi.org/10.1111/j.1468-2230.2012.00891.x |
| Published date | 01 January 2012 |
| Date | 01 January 2012 |
Using the Citizen to Bring the Refugee In: Gerardo Ruiz
Zambrano vOffice national de l’emploi (ONEM)
Iyiola Solanke*
The decision of the CJEU in Zambrano was seen as another example of an over-active judiciary
in Luxembourg.This comment suggests, on the contrary, that the case has too little reasoning to
open any ‘floodgates’but that in setting out a new logic for EU citizenship,the Opinion of fers an
approach which limits the global approach to free movement case law and uses citizenship status
to include rather than exclude the refugee.
INTRODUCTION
Talk about children owing their parents anything!We’ll never be able to pay what we
owe that baby!1
This may indeed be said in some households following the ruling of the CJEU
in Case C-34/09 Gerardo Ruiz Zambrano vOffice national de l’emploi (ONEM) 8
March 2011 (Zambrano), when the Grand Chamber decided that a non-
European Union (EU) citizen (or ‘third country national’) with dependent
children who are EU citizens, enjoyed pursuant to Article 20 TFEU a right of
residence in the member state of nationality of those children.This right existed
even if the children had not ‘triggered’ the activation of Article 20 TFEU by
migration to and residence in another member state as per traditional free
movement case law.In proposing a solution to the Grand Chamber, AG Sharp-
ston laid out a philosophy of EU citizenship which not only set it apart from
other areas of free movement but also reversed the relationship between the
refugee and citizen: instead of citizenship being used to exclude the refugee, in
certain circumstances EU citizenship can now be used to bring the refugee in.
Surprisingly, given the nature of the ruling, it has attracted little media attention
in England – the ECJ has so far avoided further accusations of ‘activism’.2
THE ZAMBRANO RULING
Mr Zambrano and his wife and child arrived in Belgium on a visa and imme-
diately applied for asylum, on the basis that they had faced persecution in
Colombia. His application was denied but due to the genuine danger of torture
in Colombia, the family was not removed from Belgium.Mr Zambrano appealed
*Senior Lecturer, School of Law, University of Leeds.
1 V. Zelizer, Economic Lives: How Culture Shapes the Economy (Princeton, NJ: Princeton University
Press, 2011) 63.
2The Economist describes the ECJ as ‘ever moreactivist’ 12–18 March 2011 The Economist 38. For an
alternative view on the phrase see P. S. Karlan,‘Acting Out’ at http://bostonreview.net/BR35.6/
karlan.php (last visited 15 March 2011).
Iyiola Solanke
© 2012 TheAuthors. The Modern Law Review © 2012The Modern Law Review Limited. 101
(2012) 75(1) MLR 78–121
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