Personal Immigration

Sanade and others (British children - Zambrano - Dereci) [2011] UKUT 00048

In this case the Upper Tribunal stated that if an immigrant facing removal from the UK has a British citizen spouse and/or child, it will never be reasonable to require the British family member to go to live with them outside the European Union. The first appellant in this case was an Indian national facing deportation; his wife was originally Indian herself but had recently acquired British citizenship, and the Tribunal found that it couldn't be argued that it was reasonable for her to live with her husband in India even though she was originally from there.

This case is particularly significant because it puts an end to an argument often made by the Home Office that British citizens can relocate abroad to live with their family members. It is often suggested that someone who lived most of their life in another country before coming to the UK and acquiring British citizenship won't face many problems going back there and therefore it is reasonable to expect them to do so if their spouse doesn't have leave to be in the UK or has committed a serious crime. It is also sometimes argued that British children who are young could easily adapt to living in a new country.

At paragraph 110, the Tribunal stated:

[W]here the child or indeed the remaining spouse is a British citizen and therefore a citizen of the European Union, it is not possible to require them to relocate outside of the European Union or to submit that it would be reasonable for them to do so.

The reasoning behind this comes from the European Court of Justice in  Ruiz Zambrano (European citizenship) [2011] EUECJ C-34/09. The Court in that case stated that anyone who is a citizen of the European Union has an absolute right to reside within the EU so that any action by a state that effectively deprives them of the opportunity to live in the EU is a breach of European law. Therefore, saying that a European child should go outside Europe in order to be able to live with their parent(s) is not permitted under European law.

Having a British child (or a child who is a citizen of another European country) doesn't automatically stop you from being removed from the UK; the European Court in Dereci & Ors (European citizenship) [2011] EUECJ C-256/11 and the Upper Tribunal in Sanade made it clear that if there is another parent who the child can live with in the UK then European law doesn't stop the non-European parent from being sent abroad. Both courts also said that having a British (or European) adult family member, such as a spouse or partner, doesn't automatically stop you from being removed, because, unlike children, they are able to choose to stay in their own country and don't have to follow their family member abroad.

Sanade is good news, however, because it eliminates the all too common argument by the Home Office that British family members can travel abroad. The right to respect for family life under Article 8 requires a very detailed assessment of all the factors in favour of and against removal, and with the proper legal representation it is possible to make a very strong case that an illegal entrant, an overstayer or a person facing deportation should be allowed to stay in the UK with their British family.

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