Zambrano guidance by UKBA

Free Movement — 

The first of my catch-up posts comes courtesy of the indefatigable Mr T – many thanks, Mr T.

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.

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The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.

8 responses to Zambrano guidance by UKBA

  1. TiDyMe

    Apparently there was a statement made to the ILPA before the UKBA news update.

    I have spotted two legally disputable parts to the news update that will be interesting to hear a lawyers perspective on.
    1. “sole carer of a dependent British citizen” – A child is dependent upon both parents. It is possible the UKBA are only referring to adult dependency here. Dependency for children (under 18 or 21?) is a fact that shouldn’t require proof beyond PR which can be documented by a full birth certificate.
    2. “that carer has no other right of residence” – Is the UKBA trying to stop people switching category and revenue protect here? If this makes it into EU Regs, I expect it to be struck down by case law quite quickly.

    Amending the EU Regs is certainly the most “generous” part of the announcement.

  2. I do enjoy reading this blog and have never commented before. However, as I am quite interested in this topic, I thought I’d just add a couple of little things from my own thoughts.

    In reply to “Mr T”, I think with your point 2, it is merely a rigid interpretation of Zambrano, as in that case, (if I remember correctly) both parents were actually in Belgium illegally. The child was the only member of the family who could stay there, by virtue of having been registered as a belgian citizen. As such, I guess UKBA could be said to be acting in accordance with the judgment. I hasten to add, if a person wanted to switch, they could always wait until their existing leave expires, before considering an application under these rules (or raise in an appeal as a ground of appeal or an additional ground?).

    One has to wonder how UKBA will actually give applicants a right of residence under Zambrano – i.e. whether by a 5 yr residence card, or by other means. Even then, it will be curious to see whether an individual could also then apply for permanent residence after 5 years (when consdiering that this is not currently possible under the “Chen” rules).]

    This definitely sounds like a good idea at the moment, but knowing UKBA, it can’t all be good. We will have to see how the changes to the regulations turn out.

    One thing that concerns me is the mention of “sole carer” and of the child having to leave the EU, but for their parent being given the right to stay here. In Zambrano both parents were non-EU citizens. What happens in the case of one UK parent and one non-EU parent? Will UKBA simply refuse, saying the child can stay here with the UK parent? I do wonder if the application of the new regulations will be very restrictive (as usual in EU law by both UKBA and often the Tribunal).

    I wonder if (should it ever happen) such an application could one day be made at the PEO (though I wonder if UKBA won’t just abandon that idea – eventhough they could make some extra money out of the PEO with EEA applications).

  3. There is another legally disputable part to the news, namely that it appears to exclude foreign parents who are not already in the UK. Zambrano itself does not explicitly provide for such an exclusion. Neither can it be said that if a parent lives in a different country then the child is automatically not dependent.

    “Amending the EU Regs is certainly the most “generous” part of the announcement.”
    Agreed, and hopefully the status acquired, assumedly a residence card, will lead to permanent residence, unlike the position under Chen where the HO maintains that settled status is only available under the ten year long residence rules, despite ECJ Chen logically being a judicial expansion of EU law, an argument which seems to be supported by M (Chen parents: source of rights) Ivory Coast [2010] UKUT 277 (IAC).

    Patrick, the HO proposed last year to allow all EEA applications for a fee at one PEO, possibly to be expanded to all PEOs in the course of time. However this hasn’t happened as yet and one reason is possibly the fact that any fee for an EEA application is illegal. (In many EEA countries there are immigration authority offices in several places and it’s normal to apply in person, this is not a premium service. The directive only allows fees the same as charged to citizens for similar documents, ie. where there is a fee to enter a population register or for an ID card. As the UK has neither, that means no fee, regardless of whether the HO wants to call a service “premium”, a concept which doesn’t exist under EU law or generally in other EEA states.)

    There has been speculation in Europe generally that Zambrano may apply to spouses or be extended to apply to spouses, also that it applies to parents of all EU citizens children in all EU countries, in which case it would supersede Chen. However those are probably further issues for another day.

    • TiDyMe

      Mutly
      Good spot. Stopping the parent of a dependent British Child from travelling to the UK with them would have the effect of depriving the child of Art.20 enjoyment.
      Having said that, I think EU law is handled in state, with only accelerated entry visas handled from outside . Presumably Zambrano entry visas will be included in the legislation.

      FM
      It was a letter to ILPA reproduced here
      http://www.wornham.co.uk/blog.php?id=22

      The UKBA hope to implement the changes to EU Regs in Qtr4 2011 at the earliest.
      I wonder if they will be “on time, & within budget” on this?

  4. As chance would have it, I have someone coming to see me today who appears to fit neatly in to Zambrano. She was married to a Brit with whom she had 3 children in her home country, and all of whom are British citizens. The husband/father died abroad and the wife/mother took the decision to relocate to the UK for the children’s schooling. She entered on a visit visa that is shortly to expire, and wishes to be advised of any facility to be able to remain on a long-term basis.

    If instructed, I’ll let readers know how we fair.

  5. Shetwo – I have followed this issue with keen interest and I think it is very important we remind ourselves a very vital issue which so far has not been considered and which the UKBA has in my view deliberately omitted in the news update concerning the case of RUIZ Zambrano.
    Of course the Zambrano case primarily concern a Belgian child however, the ECJ ruling in the case of Zambrano as contained in paragraph 45 of the decision states that ‘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 in the member state of Residence and Nationality of those children, and from refusing to grant a work permit to the third Country national, in so far as such decision deprive those children of the genuine enjoyment of the substance of the right attaching to the status of European Union citizens. In this instance, what is the position of the Ruling on the parent of an Irish/Italian child resident in the UK.

  6. Please can you tell me what will then happen to third country nationals with an EU child in the UK since the UKBA have decided to interpret the Zambrano law to relate to only British nationals?

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