Zambrano case

Colin Yeo — 
This entry is part 1 of 9 in the series Zambrano series

[UPDATE 22/3/11: see latest post on Zambrano]

In a judgment just out, Zambrano v ONEm Case C-34/0 the European Court of Justice seems to have held that the parents of a child who is a national of a Member State must be granted the right to work and the right of residence in that Member State in order to protect the right of the child to live in Europe.

This is an astonishing proposition, if my reading of the case is correct, and represents a massive extension of the principle in the Chen case.

The facts were that a Colombian couple claimed asylum in Belgium and were refused but never removed. They had two children in Belgium, both of whom were Belgian citizens. The father worked for a time but this was illegal work and after a raid on his employer he was sacked. He attempted and failed to claim unemployment benefits.

The questions for the Court were whether this factual situation gave rise to a right to work and/or a right to reside for the parents in order to protect the rights of the children. The Court has answered these questions in the affirmative, it seems. At paragraph 45 the ECJ concludes as follows:

“…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.”

Despite the reference in this paragraph to European Union citizens, the facts of the case were that the children were Belgian and lived in Belgium: there was no question of direct interference with free movement rights to move between other EU countries. In Chen the child was living in the UK but was an Irish national and had independent means of support not involving the parent working in the UK. Zambrano extends the principle to, for example, a British child living in Britain and with no independent means of support.

In contrast the Tribunal and Court of Appeal in the UK (see W (China) v Secretary of State for the Home Department [2006] EWCA Civ 1494) have held that Chen cannot be used to ‘create’ a right a work that did not previously exist independently.

Have a look at the judgment yourself and see if you agree with my reading. Comments very welcome indeed. I’m having difficulty believing this reading is correct. It would mean, for example, that any British citizen has a right of residence in Britain under EC law. Why would such a person then need to make use of the UK immigration rules for family members? Why not make use of EC law family rules instead? No need for maintenance and accommodation and so on.

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Colin Yeo

Colin Yeo

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A barrister specialising in UK immigration law at Garden Court Chambers in London, I have been practising in immigration law for 13 years. I am passionate about immigration law and founded and edit the Free Movement immigration law blog.

28 responses to Zambrano case

  1. I think this might offer a right of appeal under breach of EC rights to 3rd country nationals with British children who have no right of appeal ordinarily, if they are the ones upon whom the child is dependent.

  2. Not a lawyer, but it appears to me that paragraphs 42 and 43 of the judgement could not be clearer:


    42 In those circumstances, Article 20 TFEU precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union (see, to that effect, Rottmann, paragraph 42).

    43 A refusal to grant a right of residence to a third country national with dependent minor children in the Member State where those children are nationals and reside, and also a refusal to grant such a person a work permit, has such an effect.

    It is also clear that the Court is relying on the Treaty of Lisbon, not on the Free
    Movement Directive (cf. para 39).

    In what sense is this judgement “astonishing”? Because it should clearly be different (I disagree), or because it breaks off with an established practice (I’m not fit to comment)? In any case, I agree that it gives third country citizens a loophole to establish themselves in those EU countries that have citizenship laws similar to Belgium’s. Good for them, I say.

    • Errata: emphasis of para 42 is not mine; should be different –> ought to be different.

    • Very much the breaks off with established practice meaning – it is not for me to comment on what should or should not be. Although that does not always stop me… Zambrano seems to depart from and build significantly on Chen in two key ways: the child does not have to be a national of another Member State and does not already have to be a self sufficient person.

  3. TiDyMe

    Can anyone expand on what “Article 20 TFEU” is ? It seems similar in effect to S.55.

    Does this right extend to a non-EU parent, even where the other parent (UK/EU citizen) is already working and supporting the family? (since Jus Solis doesn’t exist in UK/Europe any longer)

    Art.20 should make it near impossible for the UK to deport the parent(s) of a British child, and hence exile the child. (EC38 already protects other EU children & their parents to some extent).

    I can’t see this being legally implemented within a short time scale, well certainly not in UK, and the UKBA who will drag its feet no doubt, so try the “limbo” route (refusing but not removing) with many, who will then clog up the courts with appeals.
    Another possible tactic is to tighten up the registration of children, in particular the 5 year stateless and 10 year residence routes to citizenship. I think S.55 may thwart that.

    If/when Art.20 is implemented in the UK, would it likely be under HC395 rules, and possibly considered under the Discretionary Leave applications?

    • Can anyone expand on what “Article 20 TFEU” is ?

      http://euwiki.org/TFEU#Article_20

      Does this right extend to a non-EU parent, even where the other parent (UK/EU citizen) is already working and supporting the family?

      I’d say yes, unless it can be shown that (1) the first parent’s income is enough to support him/her and the child and (2) the bond between the other parent and the child is weak.

      Another possible tactic is to tighten up the registration of children, in particular the 5 year stateless and 10 year residence routes to citizenship

      This is what I would expect to happen now.

    • Sorry to do this to you Mr T but I’ve been waiting for an opportunity for some time!

    • TiDyMe

      And I thought Zambrano was a light sparkling Italian wine.

      Accountants & lawyers aren’t usually noted for their SOH.

  4. Does this mark the end of reverse discrimination or not? Does a national who has never moved have a right under Article 20 of the Treaty? can the scope extend beyond the child? does this mean the UK’s position on refusing the chen case family the right to work, will have to end? will the UK be able to manipulate the ruling to say that this does not apply to chen cases

    • All good questions. I’m not sure it does end reverse discrimination against British citizens, although it does raise some interesting issues. The thrust of it seems to be that constructive deportation of a Union citizen is not permitted. Arguably that only applies strictly to children, who must accompany their carer if their carer is removed. For an adult, it would be more difficult to build a case for constructive deportation if, for example, they wanted to marry a foreign citizen. These issues will need to be argued out in the courts, though.

  5. I am not legally qualified, however it appears the following will have a right of residence
    1. Parents who have parental responsibility and are the day-to-day carer of a British or EU citizen minor (or have a residence order),
    2. Parents who have parental responsibility and
    -the family court has ordered access in the UK
    -the family court has ordered access and the child cannot travel due to age/school/finances/other parent does not agree to passport issue eg. fear of non-return/abduction
    -the older child expresses a desire (S55; family law; child to be consulted) that both parents be involved in their life
    -a parent without day-to-day care has already lived with the child (eg. before parental relationship breakdown) and/or already sees the child more often than would be reasonably possible if travelling from outside the UK on each oaccasion.

    BUT
    -this does not provide a route to ILR (unless the immigration rules are changed accordingly, which seems unlikely, or the parent still goes through DLR outside the rules as can currently be possible in Article 8 situations, or happens to qualify for leave for access to child under the immigration rules

    -this does not provide a route to PR under the EEA Regs because the ruling is not based upon an application of 2004/38 and that seems explicit

    -this has no relevance to married couples/unmarried couples/civil partners, for example applicants seeking FLR(M) or leave to enter with a spouse visa. Only if there were a Union citizen child in the UK would the ruling be relevant

    -however if there is both a British spouse AND a British child in the UK, theroretically at least there is a right to entry clearance and residence based on the child if a day-to-day carer, so the maintenance and accommodaion requirements can be “skipped”. But then no ILR after two years as not under the spouse route.

    What access a parent exercising any such right of residence would have to public funds seems unclear. Assumedly there would be access if the child would otherwise in practice need to depart the UK with that parent. Otherwise the matter may be open to interpretation and depend on future court decisions.

    Freemovement and others, does the above opinion seem plausible?

  6. how it relates to non European citizens.For example a person from India has a British child in the uk and
    parents are seperated.child is with other parent who is in uk and is working.(how it differ if she is on benefits.)

    What chances the other parent has to get visa under this case law? or it does not relates to this situation.other parents has court orders as well from uk.

    I am really confused.
    Stvert

  7. Kathryn Hughes 8 March 2011 at 8:10 pm

    Really disappointed with the judgment or rather the lack of consideration given to the principle of wholly internal situation, which stood out so strongly in Sharpson’s excellent opinion.

    What effect do you think this has on the principle and on reverse discrimination?

  8. Interesting, I can see the logical extension you make. However, what I think is most likely is that judges here will say that a number of cases are not similar in terms of fact, and therefore the scope of the judgement will be less effective :)

  9. The ruling is special on several grounds:
    1) the grand statements are not, very unsually, referring to the circumstances of the individual case of Mr Zambrano. This means that the conclusions apply to every EU citizen, minor or not …
    2) no reference to fundamental rights (such as right to respect for family life), Union citizenship is now sufficient on its own …
    3) no mention of abuse …
    4) the first sentence of para 44 – in principle, the Zambranos could have left Belgium to live in France but that is not enough for the Court – should we interpret it in a way suggesting that – say – a British national seeking to bring his Russian spouse to the UK can rely on the Union citizenship to have a right to live with his spouse in the UK on the strenght of the argument that refusal of visa and residence would mean that he has to leave the UK and EU to live with his spouse in Russia?
    5) one can construe several other factual settings where the ruling court trump national laws – like a national living in his country of origin is injured in car accident and needs personal care by his Russian father – the ruling would seem to oblige the country of nationality to grant residence to the carer …
    6) we will see tightening of nationality rules but the margin of discretion is not too big when it comes to children who would otherwise be stateless … I am not an expert but children of asylum seekers are not very likely to get nationality of the country from which parents fled …

    • TiDyMe

      Jeff

      Pt 1. I think there is some shift in this case that might lead to unconditional rights for Adults similar to that of minors in the future. I agree with you that the facts of this case are irrelevant, and the judgement is general in nature.

      Pt 2. EU citizenship and some family/carer relationship that would effectively exile an EU citizen, I think for now.

      Pt 4. The couple in your example could take the EC38 route. I wonder what effect that would have on an immigration decision/appeal if neither party needs care or have children.

  10. From all of the questions above and the prospect of massively widening EC competence over domestic issues, I think there may be serious opposition to this case by member states and a backlash case or cases that retract from this position in the near future.

    Or maybe this judegment was made with a view to doing just what it appears to have done and the wind of change is blowing purposefully through the EC institutions.

    Whatever the case, if change comes or not, this could be a very useful tool for many of our clients so in the meantime, make hay while the sun shines!

  11. Hi All I think that this decision will be useful decision by the ECJ but how it is implemented will be the issue. The fact that different EU countries have different nationality rules will be important. It appears that the children having been born in Belgium became Belgian (and thence EU) citizens at birth. Whereas the lovely BNA 1981/2006 says that children born in UK are not automatically British (and thence EU). If the ruling is correct then I see a lot of EU states changing their inclusive nationality laws to exclusive law like the UK as indeed the Irish did a few years ago.

    After CHEN the UK draughted paragraph 257 (?) which gave 3rd country nationals the right to accompany as carers their EU children to ensure that the children could exercise free movement rights however did not give these carers the right to seek employment or engage in business in the UK. THe carers essentially had to rich. I understand that challenges to the purported implementation of CHEN failed. I had a client (ghanaian national) with a german son (wife seperated) who was given entry but refused further leave when he could not prove that he was self sufficient because he had used up all his savings and was not allowed to work. His appeal was disnissed because “he could not prove that he was not looking for work” and therefore in breach of conditions. He returned to germany with his son and so practically his sons free movement rights were made otiose despite CHEN.

    Hopefully this ruling will cause the UKBA to readress this lacuna and give third country nationals, carers, of EU citizems the right to seek employment and thereby be self sufficient.

  12. In the Zambrano case both parents were Columbian and the children only acquired belgian citizenship because belgian law gives it to someone who would otherwise be stateless, which they would have been as they could not get Columbian nationality.

    Note that in order to be a British citizen a kid needs to have a parent either a national of or settled in the UK.

    So in many immigration cases the client will be a third country national, and the other parent is will be british or settled.

    So the SSHD will say that it is not necessary to grant the third country national a right of residence in order to avoid depriving the child of their right: the other parent could remain and thus allow the child to enjoy EU citizenship. Removing the third country national parent would only amount to depriving the child of EU citizenship benefits where the settled parent is not supporting the child. Though that is already pretty massive.

  13. By removing the third country national without a status, would it not amount to worsening the condition of the Union Citizen child, by depriving them of their right to family life. This will essentially force the parents to move with the Union Citizen child out of the memberstate

  14. The case refers to parents on whom the Union citizen child is dependent. I suspect with this line of argument from the SSHD that it would depend on how the courts define “dependent”, whether it be purely financial and/or whether it be emotional/access/parent-child relationship.

    In Zambrano the parents were together and neither was a Union citizen and it doesn’t appear to be have been contested that their children depend on both parents.

    If the courts to refer only to financial dependency then there would be several other issues. Does any leave to remain relying on this case lapse if the British citizen/settled parent begins or resumes supporting the child? Does the possibility of leave to remain depend on whether the applicant can or is likely to provide maintenance from outside the UK? (Could such an order be enforced there etc.)
    Can a parent who had departed then return if the British/settled parent ceases supporting the child, making the child dependent on that parent?

    Obie raises a very interesting point. Although the child and British/settled parent may not relocate if the parents are not together, there is the family law and human rights question of the child’s right to family life with both parents and whether deprivation of such a right amounts to an interference with the child’s rights as a Union citizen.

  15. TiDyMe

    FM
    Your last para
    ” a British citizen has a right of residence in Britain under EC law. Why would such a person then need to make use of the UK immigration rules for family members? Why not make use of EC law family rules instead?”

    Are you still suggesting that spouses/partners/children of UK citizens will be able to use “EU REGS 2006″ applications to UKBA soon ? (ie bypassing HC395 national laws)

    PS – the NCADC News article is worth reading.

  16. I see no reason why people can not live where ever they wish to.As long as the law of the country is kept and they are not on government money.If they are working(Doctor,Nurses etc) and paying tax then i see no fuss.

  17. So from the foregoing in light of the Zambranoo case would I be right in interpreting that third country national parents with their Irish national dependent child/ren may effectively move to any EU country and acquire an “unqualified” right of both residence for an indefinite period (ILR) and initial work permit if required without having to meet and prove the conditions of sufficient independent means? It’s not clear whether they have any rights to apply and receive social assistance in terms of housing and/or jobseekers payment etc!

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