Have any members received substantive decisions from the UKBA on any Zambrano-type applications as yet?
I have a client whom Zambrano fits like a glove. She is Jordanian with 3 Brit cit kids aged between 10 and 14, the (British) father of whom has died. Following the husband’s/father’s death, mum and the kids travelled to the UK, with mum on a visit visa.
We banged in an EEA2 for the client in November 2011, but other than a request about 3 months ago to complete a ‘derivative rights’ form, have not heard a peep out of the UKBA.
Purely anecdotally, I haven’t read of many cases which meet the HO’s definition as per the 2012 amendments to the Regulations, however some have received COAs for six months and in some cases a second or subsequent COA (usually when they intervene) because a decision has not yet been taken.
Yes, my client was issued with a COA, but the UKBA has declined to issue a replacement.
I’ll have to chase them up, but am not holding my breath!
Entirely anecdotally one of my colleagues was complaining just yesterday about a string of refusals where Zambrano fits very well. I intend to have a look at the refusals this week. Arguably however, UKBA is up to its usual tricks with what it views as adverse case law by placing such a narrow interpretation on the ratio as to make its use in their eyes negligible. While Zambrano is not a catchall its ratio is not as narrowly defined as UKBA is inclined to believe.
Well, finally a bit of movement….
After 18 months, my client has had her application granted, and has received her residence document valid for 5 years.
Just seen a refusal on the basis that the child’s British father is present in the UK, and his “mere unwillingness” (as per the current policy) to care for his son is not enough to satisfy them.
I’m waiting on a similar case.
The (Thai) mother, British father and British child are all present in the UK and living together as a family unit. However, the mother must care for the child because the father is a registered full-time carer for his own parents, and for which he receives Carer’s Allowance (thereby indicating a care commitment of at least 35 hours per week; i.e. a full-time job).
Despite these circumstances, I can see the UKBA refusing the application for the same reasons as the one you mention, Kitty.
I would also add that the client I saw appears to have made an earlier application in about 2010 for Article 8/leave outside the rules, but all that seems to remain from that is a letter from 2012 saying something to the effect that as she is now using Zambrano, that application will not be progressed further. And the refusal specifically states that Art 8 has not been considered because if she wants them to do that she can make a paying application under FM. No mention of section 55 either. Lots to think about, and about 3 days to do it in…
Very strange, mine, after waiting for 18 months, I got a refusal saying that the evidence shows that she is the mother and main carer of the 2 British children, but that the application is refused because she failed to explain why the father is not able to care for the children, and yet the applicant said that the relationship broke down and she lost contact with the man! So, how can the UKBA say that they believe she has sole responsibility, and then go on to refuse???? And as usual, they kept her documents and advised her to contact the enforcement unit! Does that mean she abandons the kids with the Brit kids with the Social Services or the enforcement unit?? crazy decisions!!
Well, on the basis that some provision would be made for the children if they were left destitute in the UK by their mother’s departure, the requirement that “there is no one else in the UK who can provide care” will never be fulfilled! Clever.
I cannot follow the ‘logic’ of the approach to Zambrano that UKBA has taken. Even if there are two parents and one must leave the remaining parent must then make that ‘invidious choice’ between staying to facilitate the European rights of the British child or following the other parent. I cannot see how UKBA can justify restriction to the ‘primary carer’. The whole point of Zambrano was to ensure that the latent or even exercised rights of European Citizenship under the TFEU were preserved. These rights cannot be preserved if one parent has to leave.
I have inherited a case where the mother and two sons are British. The eldest son is at University and technically an adult for the purposes of the Immigration Rules but under 21 years old and still dependent. The younger son is 15 and just doing his GCSE’s. The mother has a medical condition and can only work part time.
The father who we intend to make an application for was previously refused ILR and then leave outside the rules on an FLRO application due to two cautions for shoplifting when he was 18 and four driving offences. No custodial sentences and no offending since 2008.
I know that they will refuse the application as there are two carers for the children basically him and his wife. Refusing him means that he has to leave the UK and this will adversely affect the 15 year old as he will have to join his parents in South America.
No consideration in the FLRO application for section 55 or Article 8 other than the Appendix FM considerations.
This whole approach by UKBA seems to be ignoring what Zambrano was all about.
Well we’ll put in the application and if refused go to the Tribunal. Maybe we need to start requesting referrals to the ECJ on appeal to get the matter looked at and a ruling on whether the UK approach is lawful. I’m pretty certain its not.
<div class=”d4p-bbp-quote-title”>Julian Wells wrote:</div>Maybe we need to start requesting referrals to the ECJ on appeal to get the matter looked at and a ruling on whether the UK approach is lawful. I’m pretty certain its not.
The “unfortunate” aspect of Zambrano where one parent is British and the other isn’t is that Mr and Mrs Zambrano both applied. Their citizenship didn’t pass to their Belgian born child automatically and under Belgian citizenship law, the child was therefore eligible for Belgian citizenship to avoid statelessness. The same situation can’t arise in the UK until a stateless UK born child has been in the UK for five years with less than 450 days absence and can apply for registration with form S3. (Or MN1 if one parent acquires ILR first.)
So it seems basically that the HO/government do not wish to see Europen applications based on children and are doing their best to find ways of excluding anyone when the other parent is British, regardless of who the main carer is. Not all member states provide in their rules for parents of citizen children where the applicant parent can’t apply based on their relationship with the citizen parent. I suspect a reference to the ECJ on this from somewhere is a matter of time and that it will be necessary to have certainty on what rights the TFEU provides for parents.
In particular as the ECJ specifically excluded application of the directive in this case, so in the absence of a final ruling on the binding definitions of family member and of dependency, it may be that reference would need to be to family law. Not just whether one or both parents have parental responsibility but also who the primary carer is as regards family law.
The EX1 guidance that Minesh refers to is interesting: it suggests that where a caseworker thinks that Zambrano applies, the case should just be dealt with by European casework, i.e. a derivative residence card will be issued but no further action taken on the EX1/article 8 track and the applicant will not get the chance to be issued leave to remain. This suggests that Zambrano parents are being treated unfairly if they would also qualify to remain under Article 8: am I reading that right?
The guidance I am looking at is Appehere:
“Guidance on paragraph EX1 consideration…”
I think you/Kitty) are reading the Ex1 Guidance right and it brings up all sorts of questions about making applications in the alternative (especially when the route to settlement or right to benefits may be different) and as you say, the fact that Article 8 (real and otherwise) and section 55 considerations will be ignored, and what about the return of the fee if it goes the other way around (Ex1 was applied for but the applicant qualified under the £55 DRF1?
Just to add to the heap above, Cl to office just yesterday with a rejected Zambrano application because BC father not shown to be unable to care for the child.
The examples given in EUN1.12 Does the Ruiz Zambrano judgment affect visa applications? (which arguable doesn’t apply to in country applications…) are
“An example of where a person may be considered unsuitable to care for a child would be where there are child protection issues which prevent this child being placed with this particular relative/guardian – for example as a result of a particular criminal conviction or because of findings in family law proceedings. Another example might be where the person in question would be unable to care for the child due to a physical or mental disability.
“or because of findings in family law proceedings”
Does anyone know of a case in which a Zambrano applicant has a residence order?
Obviously the family court won’t grant a residence order in favour of one parent solely for an immigration reason. However in cases where the parents don’t live together and there is clearly one primary carer, a residence order under the Children Act would assumedly make it pretty hard for the HO to doubt that the holder is the primary carer. And depending why a residence order was issued, that they need to remain the primary carer.
Andrew, I have just seen one. It’s slightly more complicated, because the father seems to divide his time between two families. However, there is a residence order in favour of the client. The refusal was because there was not enough evidence that the father could not take over care. UKBA seem to be taking the position that the presence of an “exempt person” in the UK means that the application must fail, even where there is no likelihood that the other parent would be able or willing to take over care. I don’t think this is in accordance with the regulations because they only refer to an “exempt person” where care is already “shared equally”… Also, the section 55 duty is allegedly fulfilled by saying that it has been done!
Thanks Kitty. It’s difficult to say anything polite about the UKBA’s approach. One can only hope that one or more cases are referred to the ECJ resulting in definitive rules to prevent such refusals.
As an aside Sarah Teather: ‘I’m angry there are no alternative voices on immigration’. Given the statements there on the “hostile environment working group” and the reasons behind the spouse rules, I suspect this is driving the Zambrano approach too, that and perhaps a fundamental opposition to laws coming from the EU.