This is the first in a short series of posts about the Zambrano judgment. Next time: Appeals in Zambrano cases.
On 8 March 2011 the Court of Justice of the European Union (CJEU) gave judgment in the Zambrano case. On the Free Movement blog we said we thought it may mark the watershed between the history of European Community free movement law and the future of unconditional European Union citizenship rights.
So, what did the UK Border Agency make of this revolution in thinking?
The Agency’s reaction was predictably slow. On 21 September 2011, nearly six months after the judgment, UKBA finally recognized that judgment had ‘recently’ been handed down in Zambrano and belatedly formulated a holding position. A narrow reading of Zambrano was adopted and it was said that if a person met the provisional criteria then they would be issued with paperwork confirming a right to work and non-removal, but no formal status papers would be issued.
Essentially, UKBA allowed applications to be made under Zambrano but did not declare the formal rules, criteria or evidence that would be required for the applications to be granted or, for that matter, refused. Further, no application would actually be ‘granted’ as such, merely declared valid or invalid. If considered valid, a ‘certificate of application’ would be issued enabling the bearer to work and to remain in the UK. If considered ‘invalid’ the applicant would be notified but no further action would be taken and UKBA would not consider that such a decision would generate a right of appeal.
The criteria for making a valid application were (and remain) that the applicant submit:
- 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.
A little bit of further information later emerged from an internal policy document on Zambrano. The potential scope of Zambrano was decided within UKBA to be as follows:
6. Firstly, it has been agreed that the judgment applies only to cases in which the dependent Union citizen is within their state of nationality. For the United Kingdom, this means that the judgment applies only to cases involving a dependent British citizen.
7. Secondly, it has been agreed that the judgment does not apply in cases where dependency is simply financial.
8. On this basis there are then two classes of potential beneficiary:
- A third country national adult upon whom a British citizen child is dependent
- A third country national adult upon whom a British citizen adult is dependent
For the first of these two categories of beneficiary (applicant is adult dependent on child) the criteria were said to be as follows:
9. … In order for an applicant/appellant to demonstrate that they are a potential beneficiary within this category then the following criteria need to be met:
- there is evidence that the child is under the age of 18, and
- there is evidence that the child is a British citizen, and
- there is evidence of a relationship between the child and the parent/guardian/carer, and
- there is evidence of the child’s dependency on the third country national parent/guardian/carer (care responsibilities, court orders are examples)
10. In cases where there is another parent/guardian/carer upon whom the child is, or can become, dependent then this would fall out of scope. This is because removal of the third country national in such circumstances would not oblige the child to leave the EU because an alternative carer is available.
For the second category of beneficiary (applicant is adult dependent on adult) the following was said:
11. In relation to this category of applicant/appellant clear medical evidence, for example of a severe physical and/or mental disability, supported by (a) evidence which shows the adult British citizen is wholly dependent upon the third country national for their care and (b) evidence that no alternative care is available. Such cases are likely to be rare and will require consideration on an individual basis.
Both the initial guidance and the internal policy document suggested that new rules would be laid in due course, in the near future, by the end of 2011. Little more has been heard and the rules have not yet been laid at the time of writing in mid 2012.
The form to use for making any Zambrano application has been confirmed by UKBA to be a Form EEA2. As with all EU right applications, this is not compulsory but it is advisable. It is also tactically useful, as seen in the next post in this mini series, on Zambrano appeals.