The young Irish citizens forced abroad and unable to return home

"My daughter has a lot to contribute to Ireland, " says Linda*, "just like every other Irish child."

In Nigeria’s loud and chaotic commercial capital – where child hawkers serenade motorists stuck in “go slows” and traders eke out an existence in ramshackle shops – one wonders how many of Ireland’s forgotten children are faces in the crowd: young citizens whose parents are waiting for permission to return with their families to Ireland, under a landmark European Court of Justice (ECJ) ruling.

Linda met The Irish Times in Ikeja, Lagos – home to the office of Governor of Lagos state Babatunde Fashola. The governor is an energetic administrator who has won praise for transport and sanitation reforms, and he has plans that are as huge as the city itself. However progress will be slow in a country ranked 153rd out of 186 in the UN Human Development Index.

Linda knows that the future may not come soon enough for her Irish citizen daughter. Her education is suffering and basic infrastructure lacking.

“Sometimes you do not get light for weeks,” says Linda, “What do you do?”

Linda was among several Nigerian parents of Irish citizens who spoke in person, or over the phone, to highlight waits of about two years to gain a visa to Ireland and apply for residency under the terms of the ECJ Zambrano judgment of March 2011.

Landmark ruling
The Zambrano ruling, which concerned a Colombian living in Belgium with Belgian citizen children, found that article 20 of the TFEU (Treaty on the Functioning of the European Union) precluded member states from refusing a non-EU national, upon whom his EU children were dependent, a right of residence in the member state of residence and nationality of those children. It also precluded such member states from refusing to grant a work permit to that non-European Union national.

The judgment has implications for all EU countries. Minister for Justice Alan Shatter subsequently announced that he had instructed officials to examine all relevant cases before the courts and instances where deportation was being considered. He said consideration would also be given to cases involving Irish citizen children who had to leave the State when their parents were refused permission to remain.

Ireland’s embryonic immigration system and the fact of automatic citizenship by birth having ceased in 2005, compared with 1983 in the case of Britain, has made Zambrano a somewhat more taxing affair for Ireland. However, the implications continue to play out across Europe.

In June, for example, the Upper Tribunal (Immigration and Asylum Chamber) in the UK confirmed that there was no reason why the decision in Zambrano could not in principle be relied upon by the parent or other primary carer of a minor EU national living outside the EU as long as the intention was to accompany the child to his/her country of nationality.

In summer 2011, Linda applied for residence visas at the Irish Embassy in Nigeria so that the family could enter the State – with the Irish citizen child – and apply for residency. The intervening years have been spent trying to access the Embassy helpline and sending emails that have gone unanswered.

Sarah* is also awaiting a decision on a Zambrano-type visa application and shares similar experiences. “My [Irish citizen] daughter has stayed at home [in Lagos] for a couple of terms because I couldn’t afford the school fees,” she says. “I believe if we move over there [to Ireland] it’ll be easier for me to look after the kids. I don’t want to be dependent on anybody.”

The parents share a broadly similar profile – former asylum seekers who arrived in Ireland in the early 2000s and whose children were born in Ireland prior to the Constitutional amendment concerning citizenship by birth.

Parents of Irish citizen children had routinely been accorded residency until a landmark Supreme Court judgment in the Lobe and Osayande cases in January 2003 found such parents did not have an automatic right to residency.

Subsequently, many of those who had not attained residency left Ireland voluntarily before deportation, or were deported with their Irish children.

Nigerian-born solicitor Matthew Emeka Ezeani, who formerly ran a Dublin legal practice and has handled many immigration cases, says the number of people in Nigeria potentially benefiting from Zambrano "would not be so huge that we should have concern".

He agrees that the State has "a right to protect its borders", but says it must also "do a balancing act to make sure that objectives achieved are not disproportionate to the interests or the rights of its citizens – such as citizen children born to foreign nationals".

Concern for welfare
Many such children are living in developing countries.

“One is concerned about their welfare. If an adult Irish citizen has serious problems on holiday or on business abroad, the Department of Foreign Affairs offers consular assistance. Children are even more vulnerable and these children did not leave the jurisdiction of their own volition – they were forced to leave by a deliberate policy which we adopted.”

Over the years, he has heard of parents of Irish citizens turning up at the Irish Embassy in Nigeria begging for food.

Ezeani is aware of people who, having become frustrated with the long wait on their visa application, have entered Ireland illegally and successfully attained residency based on Zambrano principles. This is a risky course of action that he discourages.

Another solicitor has encountered similar cases, complaining: "I have people who are back in Africa, applying for visas, and if somebody comes in here illegally and applies [for residency] they seem to get preferential treatment."

*Names have been changed to protect anonymity.

This article was facilitated by the Mary Raftery Journalism Fund.