Case C- 34/09 Ruiz Zambrano: A Respectful Rejoinder
5 Pages Posted: 23 Jan 2012
Date Written: January 22, 2012
In summer 2011, the Common Market Law Review published a case-note dedicated to the legal analysis of the Ruiz Zambrano case of the CJEU, which is of great interest. Both of us fully agree with the authors, Professors Hailbronner and Thym, that the case is of fundamental importance in that it represents ‘a permanent move beyond the confines of “market citizenship”’ (1269), supplying one of the first examples when EU citizenship alone sufficed to the CJEU to bring the case within the scope of EU law, building on ‘EU citizenship as such’ (1263). This general agreement is one of the reasons why we are of the opinion that their note warrants a brief elaboration and rejoinder - in accord with tradition and Review practice.
The note written by two eminent scholars falls short, in our respectful opinion, of reflecting the essence of the case in a sufficiently accurate and objective manner. We have two concerns: the treatment of the facts on the ground, and the legal conclusions that flow from the analytic treatment of these ‘facts.’ The combination of the two results in demonizing and blaming the immigrant family, especially employing unfortunate restrictionist clichés and stereotypes that present immigrants from the third world who come to Europe as selfish criminals abusing the law. This phenomenon of scapegoating, of course, occurs regularly in the EU and throughout the West, both through nativist legislation and through the public discourse, which has given way to hateful terms and provocative and derogatory argot.
We do not suggest that anything crafted by Professors Hailbronner and Thym is inappropriate. However, we are concerned that their careful parsing of the facts as they might wish them to be, might deter others from actually reading the important case under consideration.
Using the lenses we suggest allows a clearer view of the actual situation. Every day, various immigration and refugee authorities record and transmit facts, sometimes great and sometimes small and ordinary. Like false rumors that can become unrecognizable when retold over time, facts can get lost in the shuffle and morph into inconvenient facts. When this occurs for a terrorized family that finds itself enmeshed in a complex legal dispute, conducted in a foreign language, it is little wonder that such small details can get lost in translation and again in litigation. But, unlike these families, scholars can, and must take a step back and read carefully and appreciate the degrees of ambiguity and nuance inherent in the cases they read, drained of the lives they record.
Leaving aside the philosophical discussion on global equality and possible justifications of closing the borders to prevent the arrival of the needy, our point is quite simple: legal scholarship should not mischaracterize the basic, constitutive facts that gave rise to a legal dispute at hand, especially in situations where the destiny of the most vulnerable and needy is decided, as occurs in immigration and refugee cases tried and adjudicated in the EU every day. We would conclude that facts in a case-note are particularly in need of care, when the facts might throw a shadow on the soundness of the derivative legal conclusions. With respect, we would dispute the treatment of the facts in the earlier case-note by professors Hailbronner and Thym, and would remand for reconsideration. We have learned much over the years from studying their earlier work, but the lesson learned here is not that which they intended.
Keywords: Market citizenship, EU citizenship, “Return” Directive 2008/115/EC, 1961 Convention on the Reduction of Statelessness, European Convention on Nationality, Asylum, Refugees
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