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Zambrano and being compelled to leave the EU

Ordinarily, UK immigration law governs the rights of entry and leave to remain of non-EU family members of UK nationals and the Immigration Rules, with their strict financial requirements, apply. Even though British citizens are also Union citizens, EU law is not normally relevant until there has been some cross-border movement. For example, a British citizen working in France is able to be joined by his/her family members with few restrictions, just as a German national running a business in the UK is able to be joined by his/her family members.

The important Court of Justice (CJEU) decision in Ruiz Zambranochallenged this neat division. Zambrano did not contain a cross-border link; it involved finding a right of residence for Union citizen children within their home Member State, based upon Article 20 TFEU, the article conferring Union citizenship on nationals of Member States.   As such, it demonstrated a separate source of residence rights, one capable of circumventing the restrictive UK Immigration Rules for TCN family reunification.

Facts of the case

A Colombian couple with a child moved to Belgium and sought asylum, which was refused, though they were not removed. Further attempts to regularise the family’s residence were unsuccessful. The family stayed in Belgium and had two children who became Belgian citizens. Mr Ruiz Zambrano secured employment but had no work permit. The authorities terminated his employment; he appealed against the decision not to grant unemployment benefits.

The CJEU’s decision

The Court determined that the work permit had to be granted to Mr Ruiz Zambrano in order to enable him to provide for himself and his family and ensure that his Belgian (Union citizen) children were able to remain within the EU:

“Article 20 TFEU is to be interpreted as meaning that it precludes a Member State from refusing a third country national upon whom his minor children, who are European Union citizens, are dependent, a right of residence in the Member State of residence and nationality of those children, and from refusing to grant a work permit to that third country national, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen.”

Thus the concept of ‘genuine enjoyment’ was born, and questions as to what constitutes the ‘substance of the rights’ of Union citizens became live.

Subsequent CJEU Case-law

The Court has not extended the Zambrano doctrine in subsequent cases: it declined to do so in McCarthy, Dereci, and O and S. The ultimate question of whether a refusal of a family member’s right of residence in the home state of their EU citizen relative would lead to the denial of the genuine enjoyment of the substance of the rights of that Union citizen is left to national courts to assess, without clear guidelines from the CJEU.

The UK and Immigration (EEA) Regulations 2006

Regulation 15A of the Immigration (EEA) Regulations 2006 takes into account the Zambrano derivative right of residence:

15A (4A) P [an applicant] satisfies the criteria in this paragraph if—

  • (a) P is the primary carer of a British citizen (“the relevant British citizen”);
  • (b) the relevant British citizen is residing in the United Kingdom; and
  • (c) the relevant British citizen would be unable to reside in the UK or in another EEA State if P were required to leave.

Zambrano within the UK

There has been successful reliance on Ruiz Zambrano in the UK, including in Omotunde (best interests – Zambrano applied – Razgar) Nigeria [2011] UKUT 00247(IAC), demonstrating that Zambrano’s scope was not limited to its unique facts. However, like those before the CJEU, most cases attempting to rely upon Zambrano have failed, including Harrison (Jamaica) v Secretary of State for the Home Department [2012] EWCA Civ 1736, where the Court of Appeal said:

“… there is really no basis for asserting that it is arguable in the light of the authorities that the Zambrano principle extends to cover anything short of a situation where the EU citizen is forced to leave the territory of the EU. If the EU citizen, be it child or wife, would not in practice be compelled to leave the country if the non-EU family member were to be refused the right of residence, there is in my view nothing in these authorities to suggest that EU law is engaged…”

Nothing less than being forced to leave the territory of the entire EU has been deemed to breach the Article 20 and 21 TFEU rights of Union citizens by the CJEU.

The Effect of Successful Reliance

  • Access to benefits?

In Pryce, the Jamaican mother of two British citizens (and one older non-British child) appealed against a finding that she was subject to immigration control, due to a right of residence as the sole carer for British citizen children derived from Article 20 TFEU and Zambrano. The case was brought before the Court of Appeal as a test case on the emerging concept of the Zambrano-carer. The Court of Appeal’s decision was important because it recognised a right not to be subject to immigration control stemming from a Zambrano right of residence, with a broader relevance than the case at hand.

The Immigration and Asylum Act 1999 s115 says anyone “subject to immigration control” is excluded from access to most non-contributory benefits, so, having demonstrated that she could rely upon Zambrano, Ms Pryce demonstrated that she was not subject to immigration control, and thus demonstrated her eligibility for homelessness assistance.

The recent Court of Appeal decision in Sanneh did not grant the Zambrano carers of EU nationals equal rights of access to social benefits as EU nationals. Access was found to be outside the scope of the Citizenship Directive and ‘genuine enjoyment’ of the substance of the rights of a Union citizen did not require the State to guarantee any particular quality of life.

  • A route for entry to the UK?

The Upper Tribunal recently took Zambrano beyond the territory of the Member States – recognising in MA and SM that there is no reason to restrict judicial recognition of the rights of Union citizens to when they are residing within the EU. Only the first appellant, MA, a Turkish national, successfully relied upon Zambrano. She was married to a man from Iran who naturalised as a British citizen after being granted indefinite leave to remain within the UK following a successful asylum claim. The couple had a British citizen son who lived with his mother in Turkey, following a brief period living with his father where the father could not provide adequate care due to his Post-traumatic Stress Disorder. This case demonstrated that a child outside the EU could re-enter it with their TCN primary carer in reliance upon the Zambrano principle.

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