Zambrano considered

Colin Yeo — 
This entry is part 2 of 9 in the series Zambrano series

[UPDATE: see new post on McCarthy]

The judgment of the Court of Justice of the European Union in the case of Zambrano (C-34/09) may mark the watershed between the history of European Community free movement law and the future of unconditional European Union citizenship rights.

Free movement law historically and conceptually depended on two elements: facilitating movement across borders and facilitating economic or protected activity of some sort, such as work, self employment or studies. Previous cases such as Baumbast, Chen and Metock started the evolution away from these principles. Zambrano represents more of a revolution, achieved by basing the decision entirely on EU citizenship rights rather than free movement law.

Previous cases relied on by third country nationals have been founded mainly on the Citizens’ Directive (Directive 2004/38) or its predecessors. Zambrano is based on Article 20 of the Treaty on the Functioning of the European Union, one of the two fundamental treaties that underpin the entire EU structure. Article 20(1) provides as follows:

Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.

The judgment itself is confusingly simple. The ratio is extremely briefly expressed:

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.

And that is it, pretty much. We have to assume that there was dissention amongst the judges, otherwise fuller reasons would have been given.

This laconic brevity contrasts markedly with the Opinion of Advocate General Eleanor Sharpston QC. Sharpston’s opinion is a must-read, not only because of her subtle and persuasive exposition of the law but also because it is the only way we can shed light on the lacuna in the Court’s reasoning.

She argues that the time has come explicitly to recognise that Articles 20(2)(a) and 21(1) TFEU (‘the right to move and reside freely within the territory of the Member States’) confer both a right to move around the Union and, separately, a right to reside within the Union without moving. She urges the Court to find that Union citizens who do move and who do not move should not be treated differently in exercise of the fundamental rights conferred by Union citizenship (‘reverse discrimination’). She accepts, though, that the fundamental right to family life under EU law cannot yet be invoked as a free-standing right.

The problem for lawyers and judges dealing with the consequences that flow from Zambrano is that Sharpston’s reasoning is neither explicitly adopted nor rejected by the Court, but both Sharpston and the Court plainly do reach the same final destination.

However, we can detect that at least some of Sharpston’s reasoning must have been accepted by the Court, even if implicitly rather than explicitly. The Court certainly does accept that Union citizenship confers a right to reside in a Member State, as it says it does so at paragraph 45 and in the build up to that paragraph. In doing so, the Court must have accepted Sharpston’s opinion that citizenship confers separate rights to move and to reside. After all, the facts of the case require that the Court must have accepted this, as the Zambrano children had not in fact moved across any borders and were nonetheless held to have a right to reside.

Many questions are posed by the decision in Zambrano. For example, in traditional free movement law terms, and/or under the Citizens’ Directive, what is the status of the Zambrano children and those like them? Do they enjoy the free movement rights set out in the Citizens’ Directive (initial residence, residence, permanent residence, right of family unity, protection against deportation) but there explicitly linked to the various forms of economic activity? What is the status of the Zambrano parents? If they do not enjoy the rights set forth in the Citizens’ Directive, what immigration status must they be accorded by a Member State and for what period? Is that right of residence an inherent one conferred by the Treaties or is it one for which they must apply and be granted at the discretion of a Member State?

More worryingly for the UK Border Agency, how far do the principles in Zambrano apply in different factual scenarios? For example, what is the effect, if any, of Zambrano on the relatively common situation where one parent is a third country national with no right to reside or work, the other parent is British or settled and the child is therefore also British? Is there an interference with the Union citizenship rights of the British parent and/or child if the third country national parent faces removal?

What rights do adult citizens of the European Union possess who have not moved between borders, such as British citizens resident in the United Kingdom? Can they elect to rely on the enhanced and generous rights of the Citizens’ Directive, whereby a spouse automatically has a right to reside in the same country as the Union citizen, irrespective of the maintenance, accommodation, age and English language requirements of the UK immigration rules? Again, are the rights acquired automatically as in EC free movement law, or must they be applied for and granted at the discretion of the UK Border Agency, as under the immigration rules?

At the very least, Zambrano offers protection against what might be called ‘constructive deportation’. This certainly applies to child citizens of the Union, where removal of one or both parents will effectively force the child to leave the Union. The same arguments may well also apply in at least some adult cases. Forcing a spouse to leave the Union to enjoy family life abroad arguably amounts to a similar interference where there is good reason why that spouse cannot be expected to relocate. If correct, this might replace the plethora of spouse Immigration Rule requirements other than bare marriage with a simple test of whether relocation abroad is reasonable or not.

One can imagine that the UK Border Agency will argue strongly against such an approach, and that the Immigration and Asylum Chambers, long resistant to any perceived extension of EC free movement rights, will also be reluctant to apply the logic of Zambrano outside very narrow factual confines. There are arguments to justify a cautious approach. The Opinion of Advocate General Kokott in the McCarthy case contrasts markedly with that of Sharpston and with the judgment of the Court in Zambrano, so it will certainly be very interesting to see what the Court eventually does in McCarthy. [UPDATE: see post on McCarthy]

For those interested in the effect of Zambrano, Adrian Berry and I will be delivering a training course on behalf of HJT Training on 30 March 2011. Click here for details and to book.

Series Navigation<< Zambrano caseMcCarthy judgment available >>
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.

19 responses to Zambrano considered

  1. This indeed raises all sorts of questions. E.g: typical scenario is Jamaican overstayer of ten years unlawful residence in UK, with British partner and British children.

    Could she, as a result of this, make an application on EEA2 (or whichever it is, I forget ;)) for a residence card? And what if the British parent isn’t a jobseeker or worker etc? This case will definitely take some mulling over.

  2. Hasn’t the common situation where one parent is a third country national with no right to reside or work, the other parent is British or settled and the child is also British already been addressed in ZH Tanzania?

  3. I am interetesed too to know scope of this judgement on a case where a non euproean citizen is a father of a britsh child but need entry clerance to visit him and is refused.How this help in appeal..if any?

    Stvert

  4. The same arguments may well also apply in at least some adult cases. Forcing a spouse to leave the Union to enjoy family life abroad arguably amounts to a similar interference where there is good reason why that spouse cannot be expected to relocate.

    Wouldn’t that require the matter to go to the ECJ again referred from a national court dealing with such an appeal?

    Stating that EU citizens have a right under §20 TFEU to reside in the member state of citizenship does not itself add to their right to live there under the national law (in the UK right of abode).

    The ECJ states “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.”
    Hence it specifically applies to parents of EU citizen children.

    The court also hasn’t defined “dependent”, that definition (potentially provided by the HO otherwise provided by the courts) would be relevant to questions such as that posed by JP.

    • TiDyMe

      Mutly – thought provoking questions/points indeed.

      Q2/Para3 : EU’s Right to Reside + Right to Family Life = non EU nationals who are family members could benefit from this case, benefits which aren’t always available under local law.

      Q3/Para4 : The ruling generically says that “constructive deportation” (exiling) of an EU national is prohibited under EU Art.20. The application of this clearly extends beyond minors, but IMHO to what extent is currently unclear

      Para5: I personally see no reason to depart from EC38 definitions, certainly at least Art.3(1) relatives.

    • I suspect it may be the point on “constructive deportation” which is critical. EU nationals right to reside in their own state (in the UK, right of abode) and the right to family life have previously coexisted in such a way that immigration control still applied to foreign spouses. That said, §8 ECHR and caselaw such as ZH Tanzania have weakened national restrictions to the extent that for eg. spouses of Britons stand a good chance of getting DLR if they are already in the UK but don’t qualify for FMR(M).

      Inclusion of all relatives as per §3(1) of 2004/38 is an interesting point, with reference to §2(2)(c) it would include minor children of the migrant spouse, an ende to those maintenance and sole responsibility criteria of the Rules may well be the subject of further proceedings up to the ECJ.

  5. TiDyMe

    I agree, the revolution has begun against the “reverse discrimination” of EU citizens in their own country.

    The case says that “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 …”.
    That clearly is not limited to the facts of the case, and as a result, I think the proportionality argument of asking spouses to relocate is logically irrelevant. Either one is being “deprived” or one is not.

    While we only have case law to argue at present, I think in-country appeals and deportation hearings are the main arenas where this ECJ ruling will be relevant. In the longer term though, this clearly will need to be legislated for, but could take years to implement.

    I guess this is still WIP as I am struggling to pick up anything new in this article than the previous/first one.

    Zambrano surely supercedes ZH as case law, but I can’t see how the case helps the majority of “out-of-country” situations or applications at present.

  6. Hi from Ireland,

    Between EU websites, Irish Immigration websites and Citizen Information websites there’s a lot of confusing information here in Ireland.

    Some information (like yours) is current and refers to the Zambrano case but here in Ireland still doesn’t refer to the part of the ruling that says you are a de facto EU Citizen and don’t have to exercise your Treaty Rights to be considered such and the Irish Immigration website still demands that you prove you have exercised your Treaty Rights if you are Irish and married to a non-EEA national and are looking for a Stamp 4 EUFam (a form of reverse discrimination against Irish citizens since other EU citizens coming to Ireland with a non-EEA spouse don’t need to).

    I am also of the understanding that EU Directive 2004/38/EC is superseded by Article 20 of the TFEU as interpreted by the Zambrano ruling insofar as a non-EEA spouse of an EEA citizen is no longer required to fulfill all the conditions set out in Article 7:1D of Directive 2004/38/EC since a baby cannot be in employment, be studying in college or have full medical insurance and if one EU citizen is exempt from this then all are.

    What do you think of that part of the ruling and its implications?

  7. Irish Minister for Justice Allen Shatter has issued a statement on the implications of the Zambrano judgement for the parents of Irish citizen children and on Ireland’s approach to implementing the judgement. Please click on the following link for the press release:

    http://www.justice.ie/en/JELR/Pages/Statement%20by%20Minister%20for%20Justice,%20Equality%20and%20Defence,%20Mr%20Alan%20Shatter,%20TD,%20on%20the%20implications%20of%20the%20recent%20ruling%20of%20the%20Court%20of%20Justice%20of%20the%20European%20Union%20in%20the%20case%20of%20Ruiz%20Zambrano.

    DO you know if UK or any other country has followed suit. If so please post the link here. Thaking You.

  8. Grenselos Kjaerlighet 26 March 2011 at 12:17 am

    This might be a difficult question to answer, but I’ll ask anyway.
    Have any of you got any thoughts to whether this judgement applies also to the EFTA countries, Norway, Iceland and Lichtenstein. TFEU is partly relevant to these countries.

    I appreciate any answers.

    • I think this is actually very easy to answer, in fact. The EFTA countries are not members of the EU. Their citizens are therefore not citizens of the EU. The judgment therefore does not apply to them.

  9. FM, thanks for the links. Denmark with its strict rules is a particularly interesting member state.

    Dr Khan, re your questions about other member states. To my knowledge the German government has not responded to Zambrano in any way. However every foreigner who has legal custody of a German citizen minor and, where not already living with that German minor, a genuine parent-child relationship evidenced by contact, is entitled to a German residence permit. There is no maintenance requirement, only a need for a current/destination address. No prior residence in Germany is necessary, indeed it doesn’t matter if the German parent resides in Germany. These provisions arise from the German Basic Law (constitution) and its provisions on family life.

    (A different issue is fathers of illegitimate children gaining custody without the mother’s consent, something which German law does not forsee and has been to the European Court of Human Rights which ruled that it must be possible if not harmful to the child, but the German government is resisting and hasn’t yet introduced compliant family law. In the UK for example such a father can gain parental responsibility in the family courts with comparative ease. In France for example he has it automatically along with the mother.)

    To my knowledge only Norway and Finland already forsee immigration specifically for parents of citizen children in a way that goes further than the UK’s “access to child” provision, however only Germany forsees it generally for all custody holders.

  10. TiDyMe

    Here’s another link http://www.gherson.com/News/zambrano-children.aspx

    It’s interesting to see that the Irish minister thinks that this case only affects parents of EU citizen’s, but the Danish minster thinks spouses are affected by this ruling, as does the Danish group “Marriage Without Borders”.

    The pro-active stance of the Irish immigration minister rather contrasts with its department’s attitude previously. No mention of Zambrano on the UKBA website so far to date (26/3/2011).

    • RE: Irish Minister thinks that this case only affects parents of EU citizens

      I wrote to Minister Shatter about a week ago both through his party’s website and via the government website and have heard nothing back. I also wrote to the immigration service via their website at the same time and also heard nothing back – my query was in regard to Article 20 of the TFEU and the Zambrano ruling and residence for my non-EEA spouse. We’re in the process of filling out all the forms now but I’m annoyed at the amount of paperwork I have to provide (along with bank statements etc) as they’re all still operating pre-Zambrano with regard to spouses, Stamp4 EUFam cards and Directive 2004/38/EC – regardless thanks for the OP and the comments, a very informative blog.

    • Zambrano specifically refers to §20 TFEU rather than 2004/38 so when the case enables a right of residence for a parent (or spouse) it still remains to be seen in what form this is to be granted. As a residence card (Ireland stamp 4EUFam) is issued under 2004/38 it may be a different status which is issued. That said, the only other form which exists is leave to remain under the rules (Ireland stamps 1-4 under national immigration rules) and these would need to be amended following relevant court cases. So it may be a residence card. In the UK, granting DLR without amending any immigration rules may be a possibility.

      However the case does not rule on if and when the holder acquires settled status. Given that the case does not rely on 2004/38 it may not be automatic permanent residence after five years of residence under that directive (for which the EEA national would also need to meet the treaty rights requirements laid down there).

      So if a right of residence granted by Zambrano continues beyond the EU child becoming an adult and/or no longer being dependent and/or for a spouse after divorce also remains to be seen. It would however seem reasonable that the status leads to settlement under conditions not stricter than those of 2004/38.

      Also with the exception of the UK, Ireland and Denmark which have not opted into it, relevant persons may come under 2003/109 (“EU long stay”) when those criteria including five years of residence and the relevant national integration requirements are met.

  11. I wasn’t sure how to contact you, so I hope that it’s ok to leave a comment and I thought this was the most appropriate place…
    I’ve just won an Income Support appeal for my third country national single mother who has a British citizen child, using the principles set out in Zambrano.
    I am also waiting for an oral hearing of the JR of the refusal to grant Interim Payments. This may of course be rendered academic if the DWP don’t appeal the tribunal’s decision. We’ll have to wait and see.
    I have written an article for our blog: http://www.birminghamlawcentre.org.uk/wordpress/
    The first time I heard of Zambrano was reading your blog back in March. I quickly realised the significance of it for my client group and after a lot of hard work we were rewarded with a victory at the First-tier Tribunal.
    I would be most grateful if you could take a look at the article and help us to get the news out to other practitioners, I think this is a watershed moment for a great many children of undocumented and often destitute migrants.
    Please contact me if you want to know more about the case and I can also send you a copy of the decision notice – it’s worth seeing.
    Thanks.
    Michael

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