The UK Border Agency have issued some belated guidance on the Zambrano case. It only appears in the form of an item on the news section of the UKBA website, though, and has not been incorporated into a formal policy document as such, at least so far as I can find. The main text reads as follows:
The Court of Justice of the European Union (ECJ) recently handed down judgment in the case of Ruiz Zambrano (C-34/09). This judgement creates a right to reside and work for the sole carer of a dependent British citizen when that carer has no other right of residence in the UK and removing the carer from the UK would mean the British citizen would have to leave the European Union. The UK Border Agency has been considering the effect of this judgement and whether any changes are required to our policy or the law as a result. Until now, we have not accepted applications we have received on this basis as there is currently no provision within the Immigration (European Economic Area) Regulations 2006 (the regulations) to issue documentation on this basis.
We will amend the regulations in due course to enable a person to be issued with a document confirming that they have a right to live in the UK as a result of the Ruiz Zambrano judgement. However, in the meantime, we will issue a certificate of application to those who are able to show:
- evidence that the dependent national is a British citizen;
- evidence of the relationship between the applicant and the British citizen; and
- adequate evidence of dependency between the applicant and the British citizen.
This certificate will enable a person to work in the UK while their application is outstanding. Once changes to the regulations are made, the application will be given full consideration and documentation will be issued under the regulations to those who meet the final agreed policy.
Employers can accept this certificate of application, in combination with a positive verification from our Employer Checking Service, as proof of right to work in the UK for up to 12 months. This document combination comes under entry 5 of List B within the ‘Comprehensive guidance for employers on preventing illegal working’, and will provide an employer with a statutory excuse against payment of a civil penalty for up to 12 months.
It is interesting that UKBA propose to amend the EEA regulations themselves. Implementation of the Chen judgment is still to be found in the immigration rules, for example, and the regulations so far only really address the provisions of the Citizens Directive. Zambrano has a totally different source of law to the Directive. It would be far more convenient and transparent to have it all in one place, though, so my own view is that this is to be welcomed.
The guidance is also interesting for what it does not say. It does not appear to bar an application by a third country national parent of a British child where there is also a British parent on the scene. It would be very unusual (but not impossible) to have a British child otherwise, of course. There are no further details on what is meant by ‘adequate evidence of dependency between the applicant [parent] and the British citizen [child]‘, however, and much probably depends on this.
If I come across anything more detailed, I’ll post it up.