Updates, commentary, training and advice on immigration and asylum law

More on Zambrano guidance

THANKS FOR READING

Older content is locked

A great deal of time and effort goes into producing the information on Free Movement, become a member of Free Movement to get unlimited access to all articles, and much, much more

TAKE FREE MOVEMENT FURTHER

By becoming a member of Free Movement, you not only support the hard-work that goes into maintaining the website, but get access to premium features;

  • Single login for personal use
  • FREE downloads of Free Movement ebooks
  • Access to all Free Movement blog content
  • Access to all our online training materials
  • Access to our busy forums
  • Downloadable CPD certificates

The UK Border Agency has released the slightly more detailed guidance on Zambrano-based applications that was referred to in my earlier post on this. This follows from a Freedom of Information request, although in fact the document had already been provided to ILPA. Frankly, it does not take things a great deal further and there is still little indication of what is meant by ‘adequate evidence of dependency’. However, a bit more guidance is provided, and it looks more restrictive than might have been hoped. Firstly it addresses children cases:

In practice, the majority of cases are likely to come within this category and so will involve a British citizen child who is dependent upon a third country national parent. 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)

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.

The section on adult cases makes clear that UKBA does not have spouses in mind:

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.

The guidance also states that deportation action (i.e. involving criminal convictions) will not be suspended by a Zambrano application, although enforcement action in an ordinary removal case will be suspended.

Relevant articles chosen for you
Free Movement

Free Movement

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.

Comments

5 Responses

  1. Does this mean that if a British child has both parents and one of them is applying under this ruling they cant be considered 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. please help.

  2. “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.”

    How the UKBA think this is compatible with EU law I don’t know.
    Consider: Article 9.1 of the Convention on the Rights of the Child (5)
    “a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child.”
    Consider: Article 24:-
    “Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.”

    1. The Convention is a matter of national law, being signed by states rather than the EU and so is relevant for discretionary leave, along with Article 8 etc. But indeed, the argument that a migrant parent can’t apply under Zambrano where the British parent is in the UK seems excessively restrictive and difficult to justify. It looks like an attempt to make the judgement apply to as few applicants as possible. It would be difficult to argue that separation from one parent doesn’t violate the child’s rights, or that the child wouldn’t effectively be forced to leave if that would be the only way of maintaining contact. Hopefully the pending ECJ case and potential further cases will clarify this and the HO would have to adjust policy accordingly.