- INTERPOL “wanted” alerts: using them as evidence and making them go away
- Tier 1 (Entrepreneur) visas: is Britain open for business?
- Alternative options for EU partners: making an application under Appendix FM
- The interregnum: 11 years without free movement from 1962 to 1973
- The case of Stoly Jankovic: what are the 10 and 20 year rules on long residence?
- The hostile environment: what is it and who does it affect?
- Waiting time in the immigration tribunal now 83 weeks for some appeals
- New CJEU case extends Zambrano rights of residence, emphasises best interests of children
- Indefinite detention does not breach ECHR says European Court of Human Rights
- Court of Appeal dismisses challenge to rules on Adult Dependent Relatives
- Home Office unlawfully relies on Albania guidance for five years
- Country guidance issued between hearing and promulgation will still bind tribunal
- Family life succeeds in defeating s.94B ‘deport first, appeal later’ certification
- No human rights issues to be raised in EEA appeals, confirms Court of Appeal
- Court of Appeal: “Particularly where children are concerned, there is no such thing as an average case”
- When can a tribunal be forced to pay the costs of judicially reviewing it?
- Another successful unlawful detention claim
- Guidance from tribunal on strike out powers and appeal to Court of Appeal as remedy
- Tribunal says foreign law is a question of fact normally determined by expert evidence
- Tribunal gives guidance on general principles in deprivation of citizenship appeals
- Coruscating criticism by President of Home Office behaviour in refugee family reunion case
- Tribunal rules a Big Issue seller has no right of residence in EU law
- UK law found to be more generous than EU law for jobseekers acquiring permanent residence
- New Home Office policy: Exclusion from the UK
- Another massive increase in immigration and nationality application fees for 2017-18
- Do dual EU-UK citizens have rights under EU law?
- Can President Assad’s wife be deprived of her British citizenship on public good grounds?
- Upper Tribunal dismisses appeal against deprivation of citizenship of Rotherham sex gang
- Tribunal finds Home Office has wrongly issued British passports to EU citizens and their children
- Supreme Court refuses damages to refugee wrongly prosecuted for illegal entry
- Court of Appeal gives guidance on meaning of ‘unlawful residence’
- Court of Appeal decides Supreme Court ruling in Hesham Ali is already redundant
- Home Office cannot unilaterally modify tribunal bail conditions (updated)
- Ankara Agreement standstill clause does not apply to settlement applications says tribunal
- Tribunal gives guidance on revocation of deportation orders after 10 years
- Reference made to CJEU on extended family members, Surinder Singh and appeal rights
- New guidance on validity, variation and withdrawal of immigration applications
- Home Office belatedly issues guidance on Operation Nexus
- New EEA(PR) application form guidance published
- General grounds for refusal: criminal convictions, public good, character, conduct and associations
- M2 (Deprivation of Citizenship : Substantive)  UKSIAC SC_124_2014. An Afghan national who acquired British citizenship by naturalisation in 2011, he was accused of being a risk to national security because of family and personal connections to prominent international terrorists.
- K2 v. the United Kingdom (Application no. 42387/13). Arrived in UK as a child from Sudan, naturalised as British in 2000, it was alleged he was involved in Somalia in terrorism-related activities linked to Al- Shabaab.
- S1, T1, U1 & V1 v Secretary of State for the Home Department  EWCA Civ 560. Four members of a family were all deprived of their citizenship on the basis they were active members of a terrorist organisation, Lashkar-e-Tayibba, a proscribed terrorist organisation in the United Kingdom, the United States and Pakistan, and were supporters of Al Qaeda.
- Pham v Secretary of State for the Home Department  UKSC 19. A Vietnamese national entered the UK as a child with family and naturalised as British in 1995. At 21 he converted to Islam. Between December 2010 and July 2011 he was in the Yemen, where, according to the security services but denied by him, he was said to have received terrorist training from Al Qaida. The security services assessed that at liberty he would pose an active threat to the safety and security of the UK.
- Ahmed and Others (deprivation of citizenship) (Pakistan)  UKUT 118 (IAC). The appellants had acquired British nationality by naturalisation and retained their Pakistani nationality; they were dual nationals. Often referred to as the Rochdale gang, they had been convicted of the trafficking of children for sexual exploitation, rape, conspiracy to engage in sexual activity with children and sexual coercion. Their sentences ranged from 6 to 19 years imprisonment. The sentencing judge highlighted the scale and gravity of the offending, the protracted period involved (2008 - 2010), the ages of the victims - they were young teenagers - and the factors of callous, vicious and violent rape, humiliation and financial gain.
- when desired
- against specific individuals desired and
- with no legal or political blowback.
|Section 40(2)||Section 40(3)||Total|
A person who is not a British citizen is liable to deportation from the United Kingdom if … the Secretary of State deems his deportation to be conducive to the public good.This is surprising. One might expect a significantly higher hurdle to be met to justify stripping a citizen of his or her rights compared to deporting a foreign national. This is all the more so when one considers that deportation is temporary and can be reversed whereas citizenship deprivation is permanent and there are statutory exceptions to deportation that do not apply in deprivation cases. It could even be argued that the protection against deportation is superior to protection against citizenship deprivation.A deportation involves removal from the UK and exclusion for the duration of the order. The Immigration Rules provide that a deportation order will normally be maintained for 10 years. An application for revocation can be made before the 10 year period expires and can be granted on an exceptional basis. In contrast, deprivation of citizenship is permanent.There are additional legal provisions encouraging deportation in some defined circumstances and excepting a person from deportation in other circumstances. Under the UK Borders Act 2007, any sentence of imprisonment of 12 months or more will trigger consideration of deportation action. Exceptions are built into that Act, though, for example if deportation would breach the person's human rights, and further more detailed exceptions based on relationships with a spouse and/or child and long residence are built into the Immigration Rules and Part 5A of the Nationality, Immigration and Asylum Act 2002.There is no equivalent in deprivation cases to the automatic trigger of consideration, but nor are there any statutory exceptions set out for deprivation cases. While it would be surprising and illogical for the Secretary of State to pursue deprivation action against a British citizen for behaviour which would not trigger deportation if committed by a foreign national, the statutory power itself would seem to allow for this perverse outcome.It could be argued that the concept of “public good” is very different in the context of deprivation of citizenship compared to deportation, however, particularly if it is recalled that in the original version of section 40 the public good test was if anything an additional constraint on the Secretary of State. Public good might be argued to include the public good in maintaining citizenship as a special status and protecting citizens against deprivation of their fundamental status except in extreme cases of crimes against the state.This is not an argument that has been tested and the Ahmed case is not an encouraging precedent. [post_title] => Deprivation and deportation compared: meaning of "public good" [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => deprivation-deportation-compared-meaning-public-good [to_ping] => [pinged] => [post_modified] => 2017-07-20 14:33:56 [post_modified_gmt] => 2017-07-20 13:33:56 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=54687 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 54686 [post_author] => 23 [post_date] => 2017-07-20 14:33:01 [post_date_gmt] => 2017-07-20 13:33:01 [post_content] => Section 40 now provides in full as follows (with some commentary):
|40 Deprivation of citizenship||Comments|
|(1) In this section a reference to a person's “citizenship status” is a reference to his status as—(a) a British citizen,(b) a British overseas territories citizen,(c) a British Overseas citizen,(d) a British National (Overseas),(e) a British protected person, or(f) a British subject.||Definitions. Deprivation power not restricted to British citizens but also other British nationals. No known examples of use, though.|
|(2) The Secretary of State may by order deprive a person of a citizenship status if the Secretary of State is satisfied that deprivation is conducive to the public good.||Public good deprivation power, applies to all British citizens including by birth.Previously (see further below):|
|(3) The Secretary of State may by order deprive a person of a citizenship status which results from his registration or naturalisation if the Secretary of State is satisfied that the registration or naturalisation was obtained by means of—(a) fraud,(b) false representation, or(c) concealment of a material fact.||Deception deprivation power.Materially identical to power under British Nationality Act 1948. Only applies to those who acquired by registration or naturalisation. Nullification process might apply where person falsely claimed citizenship on basis of birth.|
|(4) The Secretary of State may not make an order under subsection (2) if he is satisfied that the order would make a person stateless.||Statelessness protection, but subject to the exception below.|
|(4A) But that does not prevent the Secretary of State from making an order under subsection (2) to deprive a person of a citizenship status if—(a) the citizenship status results from the person's naturalisation,(b) the Secretary of State is satisfied that the deprivation is conducive to the public good because the person, while having that citizenship status, has conducted him or herself in a manner which is seriously prejudicial to the vital interests of the United Kingdom, any of the Islands, or any British overseas territory, and(c) the Secretary of State has reasonable grounds for believing that the person is able, under the law of a country or territory outside the United Kingdom, to become a national of such a country or territory.||Added by the Immigration Act 2014. A person can be deprived of citizenship on public good grounds (not deception grounds) even if it would make him stateless if:|
|(5) Before making an order under this section in respect of a person the Secretary of State must give the person written notice specifying—(a) that the Secretary of State has decided to make an order,(b) the reasons for the order, and(c) the person's right of appeal under section 40A(1) or under section 2B of the Special Immigration Appeals Commission Act 1997 (c. 68).||Procedural protection. This is commonly sidestepped by the Home Office by serving the written notice to the person’s UK address when the person is outside the UK. This prevents real notice and prevents re-entry to the UK.|
|(6) Where a person acquired a citizenship status by the operation of a law which applied to him because of his registration or naturalisation under an enactment having effect before commencement, the Secretary of State may by order deprive the person of the citizenship status if the Secretary of State is satisfied that the registration or naturalisation was obtained by means of—(a) fraud,(b) false representation, or(c) concealment of a material fact.||Enables deprivation on deception grounds if citizenship obtained by registration or naturalisation prior to 1 January 1983.|
The Secretary of State may by order deprive a person of a citizenship status if the Secretary of State is satisfied that the person has done anything seriously prejudicial to the vital interests of—(a) the United Kingdom, or(b) a British overseas territory.This version of section 40 also removed the protection against deprivation for individuals born British.Section 40(2) was amended again by the Immigration, Asylum and Nationality Act 2006 as of 16 June 2006 to the current version and further amendments were made to section 40 by the Immigration Act 2014 to include a new section 40(4A), which allows deprivation even where it might cause statelessness in certain circumstances. [post_title] => 2002 to 2006 [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => 2002-to-2006 [to_ping] => [pinged] => [post_modified] => 2017-07-20 14:32:08 [post_modified_gmt] => 2017-07-20 13:32:08 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=54685 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 54684 [post_author] => 23 [post_date] => 2017-07-20 14:31:35 [post_date_gmt] => 2017-07-20 13:31:35 [post_content] => The legal power to strip a British citizen of his or her citizenship is currently conferred on the Secretary of State for the Home Department, the Home Secretary, by section 40 of the British Nationality Act 1981. Essentially, the power can be used where the Secretary of State is satisfied it is conducive to the public good to do so.This power has been repeatedly amended in recent years to make it easier to strip citizenship from Britons.1948 to 2002The original incarnation of the deprivation power in the British Nationality Act 1981 was very similar to the equivalent power under the British Nationality Act 1948 and had therefore been in place for decades.Originally the BNA 1981 set out what is now the public good deprivation power at section 40(3) as follows:
Subject to the provisions of this section, the Secretary of State may by order deprive any British citizen to whom this subsection applies of his British citizenship if the Secretary of State is satisfied that that citizen—(a) has shown himself by act or speech to be disloyal or disaffected towards Her Majesty; or(b) has, during any war in which Her Majesty was engaged, unlawfully traded or communicated with an enemy or been engaged in or associated with any business that was to his knowledge carried on in such a manner as to assist an enemy in that war; or(c) has, within the period of five years from the relevant date, been sentenced in any country to imprisonment for a term of not less than twelve months.The power only applied to those who acquired British citizenship by registration or naturalisation; British citizens by birth could not be deprived of their citizenship.Subsection 40(5) also then stated that the power should not be used unless the Secretary of State was satisfied that it was not conducive to the public good that that person should continue to be a British citizen and that the person would not be rendered stateless. At that time, the public good was more akin to an additional protection and restraint than a threshold for deprivation. [post_title] => 1948 to 2002 [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => 1948-to-2002 [to_ping] => [pinged] => [post_modified] => 2017-07-20 14:31:35 [post_modified_gmt] => 2017-07-20 13:31:35 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=54684 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 54683 [post_author] => 23 [post_date] => 2017-07-20 14:30:40 [post_date_gmt] => 2017-07-20 13:30:40 [post_content] => The power of deprivation of citizenship is a profound one affecting the very nature of our polity and the balance of power between the individual and the state.To deprive a person of their citizenship on the grounds of their behaviour or opinion is to cast them out of society. It is a power of exile or banishment. In Roman law, the punishment of “proscription” was civic and literal death, unless the person went into exile. It would be used only in cases of crimes against the state itself.Cicero did not make it as far as exile. As he fled he was summarily but lawfully executed, his property confiscated by the state and his head and hands severed and displayed in Rome.Depriving a person of their citizenship is the closest modern equivalent we have to expressing that level of disapproval and repugnance for a person’s actions.These days the drier, technical, less evocative language of “deprivation of citizenship” barely attracts any interest at all. This complacency is reinforced by the watered down and anodyne nature of the legal power, which is now equivalent to that for the deportation of an alien. If anything, the protection for British citizens against being stripped of their supposedly precious citizenship are actually inferior to the protections available to settled foreign nationals against deportation.Deprivation also affects only some citizens. This belies the idea that citizenship is an equal status. Only dual nationals and naturalised citizens can generally be deprived of their citizenship. Some people’s citizenship is more sacrosanct than that of others; some are first class citizens and some are second class. This proposed divisibility of citizenship was highly controversial in France but it is assumed and accepted as unremarkable in the United Kingdom, where we enshrine inferior forms of British nationality in law.Voltaire criticised banishment on the grounds that it throws into our neighbour’s field the stones that incommode us in our own.The targets of citizenship deprivation are products of our society, albeit perverse ones, moulded by our own practices and interactions. Rather than confronting the forces that shape these individuals we banish them to states that are often weaker and more fractured than ours. This is is to act unjustly towards other states as well as the erstwhile citizens themselves. [post_title] => Introduction to citizenship deprivation [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => introduction-citizenship-deprivation [to_ping] => [pinged] => [post_modified] => 2017-07-20 14:30:40 [post_modified_gmt] => 2017-07-20 13:30:40 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=54683 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 51951 [post_author] => 460 [post_date] => 2017-06-12 16:46:18 [post_date_gmt] => 2017-06-12 15:46:18 [post_content] => Feedback always welcome![gravityform id="1" title="true" description="true" ajax="true"] [post_title] => Feedback [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => feedback-7 [to_ping] => [pinged] => [post_modified] => 2017-06-12 16:46:18 [post_modified_gmt] => 2017-06-12 15:46:18 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=51951 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 51950 [post_author] => 460 [post_date] => 2017-06-12 16:45:30 [post_date_gmt] => 2017-06-12 15:45:30 [post_content] =>
This month we start with the some general news and updates, run through a whole load of cases, most of which are Court of Appeal authorities, and then end with a look at Statement of Changes HC1078 and then a few of the new style of more detailed blog posts on the Immigration Rules, this time covering several more of the general grounds for refusal. These have now been collected together into a training course for those who are interested.
The material is all drawn from the March 2017 blog posts on Free Movement.
If you listen to podcasts on your mobile phone, you can subscribe for free via iTunes here, Stitcher here or point your podcast player to podcast feed for Free Movement. Using a mobile device and subscribing has the advantage that each new podcast can be automatically downloaded for listening to on the go.
To access previous Free Movement immigration update podcasts click here.
The downloadable 25 minute audio podcast follows the (non chronological) order of content below:
- Immigration solicitor fined £10,000 for signing off “grossly misleading and inaccurate” court documents
- Home Office ends policy of automatic settlement for refugees after five years
- Syrian refugees to be properly recognised as refugees at last
- Tribunal on recorded video evidence and Article 8 considerations
- Children should be treated as children while their age is properly assessed
- Detention of Dublin asylum seekers held to be unlawful
- Student accused of ETS fraud found to have been unlawfully detained
- Scarring evidence in asylum cases
- High Court declares unlawful the abolition of right of appeal for Turkish nationals
- When is it reasonable to require British citizen children to leave Britain?
- Upper Tribunal wrong all along on Kareem and proxy marriages of EU citizens
- Court of Appeal reaffirms position on adult dependent relatives
Immigration rules explainers
- New Statement of Changes in Immigration Rules HC 1078
- What do immigration officers look for when assessing visit visa applications?
- General grounds for refusal: understanding re-entry bans for past breaches of immigration rules
- General grounds for refusal: contriving to frustrate the intention of the rules
- General grounds for refusal: alleged deception and innocent mistakes
When does the Zambrano right arise?In Zambrano (C-34/09) the CJEU established that a refusal to grant a right of residence to a third country national (‘TCN’) with a dependent minor child in the member state where the child is a national and resides, is prohibited if it has the effect of depriving citizens of the Union “the genuine enjoyment of the substance of the rights” conferred by virtue of their status as citizens of the Union. However, it was not necessary for the CJEU to define when Mr Zambrano’s right to reside arose and it gave no guidance on that point. Arden LJ, who gave the lead judgment, said the issue presents a choice between two dates:
(i) The time when the carer ceases to be liable to be removed i.e. the first date from which the Zambrano carer ceases to be liable to prohibited national measures (‘The First Date’).
(ii) The date when prohibited national measures are taken (or are imminent) (‘The Last Date’).None of the subsequent EU cases considered the First Date/Last Date point (e.g. Dereci (C-256/11), O v Maahanmuuttovirasto (C-356/11 and C-357/11) and Iida (C-40/11)). The Court of Appeal in Harrison (Jamaica) v SSHD  EWCA Civ 1736 was concerned with a different issue; namely that the Zambrano principle only covers the case where the carer is forced to leave the EU and not the lesser situation where the departure of the carer may adversely affect the quality of life of an EU citizen child who is left behind with another primary carer.The Appellants argued that the effect of the CJEU’s decision in Zambrano is that it was to be assumed that the Zambrano carer without support would be forced to leave for want of resources. On that basis, the right to reside would arise immediately (‘the First Date’). Moreover, a TCN who has no right to reside in the UK commits a criminal offence under section 24(1)(a) of the Immigration Act 1971. It would be wrong, in principle, if a Zambrano carer had to commit a criminal offence in order to be able to look after the EU citizen child in her care because she has no right to reside until the Last Date. On the other hand, the Secretary of State argued that the rights conferred on Zambrano carers are extremely limited. On his analysis, there is no right to reside as such until the point where the removal of the Zambrano carer from the EU is imminent. In the meantime, the carer’s presence in the country is merely tolerated.[su_pullquote align="right"]I wholly reject this analysis of the nature of the Zambrano right. In my view, it is barely coherent. - Elias LJ[/su_pullquote]Arden LJ observed that matters of entry and stay for non-EU citizens are matters outside the exclusive competence of the EU. However, the CJEU has held that member states must not take decisions on those matters which would make the rights of EU citizenship ineffective (e.g. Baumbast (C-413/99) and Chen (200/02). Against this background, Arden LJ held that it would make no sense for the Zambrano right to arise only from ‘the Last Date’ (para 74). In a concurring judgment Elias LJ criticised the position taken by the Secretary of State on this issue (paras 166-168):
“I wholly reject this analysis of the nature of the Zambrano right. In my view, it is barely coherent. The logic appears to be that although the State at all times has the right to take action to remove the third country national, in practical terms it is necessarily and always meaningless. At the very same moment as the State takes steps to exercise it, a countervailing right magically springs into being which enables the carer to claim to be immune from the process. Presumably on this analysis if the State then agrees not to take removal action, the need to invoke the Zambrano principle disappears and the carer returns to the status of someone whose presence is simply tolerated but who has no right as such to remain in the country.I cannot accept that this would be a proper implementation of the EU right. The right lawfully to remain and work in the UK can only sensibly mean that no action can be taken by the State to defeat those rights… At all times whilst the Zambrano conditions are met, the carer has the right not to have action taken to remove her from the country if the effect would be to deprive the child of his or her right, as a citizen of the EU, to remain within the EU.The Secretary of State’s submission is made all the more bizarre given that someone not lawfully present in the UK is under a duty to leave, and indeed is committing a criminal offence by remaining: see section 24 of the Immigration Act 1971. As I understand the response to this point of Mr Coppel QC, counsel for the Secretary of State, it is that in practice no proceedings are ever instituted against those illegally present, and if they were there would be an immunity from the criminal process. But to be effective the immunity must have the effect that at no time when the carer has been performing her role as a Zambrano carer has she been acting illegally by remaining in the country. The carer’s presence in the circumstances must be lawful, not merely tolerated, and that can only be on the premise that there is at all times a right to stay.”Consequently, Zambrano carers were entitled to social assistance by virtue of their right to reside until that right had been deliberately excluded by an amendment to the habitual residence test (for both benefits and housing assistance) by SI 2012/2587, SI 2012/2588 and SI 2012/2612 (‘the Amending Regulations’) which came into force from 8 November 2012 (paras 135, 139 and 170). The Upper Tribunal’s decision in Sanneh v SSWP was therefore set aside as wrong in law as Ms Sanneh had been entitled to claim income support when she claimed benefit in June 2011 (para 137).This leaves the question of what social assistance the Zambrano right gives to carers and their children in the UK post-the Amending Regulations.
Does Zambrano create an entitlement to social assistance?[su_pullquote]The Court ruled that member states must make social assistance available to Zambrano carers when it is essential to do so[/su_pullquote]The Court ruled that member states must make social assistance available to Zambrano carers when it is essential to do so to enable them to support themselves and the EU citizen child/children in their care within the EU. Arden calls this the ‘basic support test’. However, this is as far as EU law goes.The Court held that EU law has no competence as to the amount payable to Zambrano carers as this is a matter governed by national law. In broad terms, the Court said that the directives which deal with cross-border social security (including the Citizenship Directive (2004/38), the Long-Term Residence Directive (2003/109) and the Family Reunification Directive (2003/86)) provide an exhaustive statement of the rights to social assistance which a member state has to give to non-nationals. However, Zambrano carers cannot point to any provision within this scheme which gives her a right to social assistance as a matter of EU law. It follows that a member state can, in principle, decide on the level of benefits it grants to Zambrano carers.In the UK, the payment of adequate social assistance to Zambrano carers is achieved through the availability of section 17 of the Children Act 1989. This is sufficient to meet the UK’s obligations to provide support ‘basic support’ to Zambrano carers. The fact that Zambrano carers do not have a member state of origin to which to return does not justify giving them a right which is better than that of economically inactive EU citizens (under the Citizenship Directive) or TCNs (under the Long-Term Residence Directive).
Can Zambrano carers gain social assistance at the same level as EU citizens by virtue of EU anti-discrimination provisions?The Appellant in R (HC) v SSWP sought to challenge the Amending Regulations on the basis that they were in breach of anti-discrimination provisions in EU law. The Court, in effect, said this challenge does not get off the ground as, according to EU case law, TCNs cannot rely on the anti-discrimination provision in Article 18 TFEU (ONAFTS v Ahmed (C-45/12). Nor can EU citizens who are not self-sufficient rely on the non-discrimination provisions in the Citizenship Directive (Dano (C-333/13).In relation to the arguments based on the Human Rights Act 1998 and the Equality Act 2010 the Court held that the scheme for Zambrano carers in the UK was proportionate and the differential treatment of these carers could not be described as ‘manifestly unreasonable’. The Court accepted the Secretary of State’s justification based on the following factors: (i) the differentiation does not leave the Zambrano carer and the EU citizen child destitute; (ii) a Zambrano carer can apply for long-term leave to remain under Appendix FM to the Immigration Rules; (iii) the policy reduces the incentive for people to come to the UK to claim benefits and encourages immigrants here unlawfully to regularise their stay (paras 98, 115-116).The Court also rejected submissions based on the EU Charter (para 117), the principle of proportionality (paras 92, 100) and the Equality Act 2010 (para 31, 122).
The Court’s conclusionsThe Court of Appeal’s conclusions on the main issues are listed below: -
- The Zambrano right creates an obligation on member states to take steps to ensure that the Zambrano carer and the dependent EU citizen are able to remain in the EU.
- The Zambrano status arises as soon as the necessary conditions are met (‘the First Date’); there is no need to wait until the carer is destitute or forced to leave the EU (‘the Last Date’) (para 25 and 167-169). Hence, prior to the Amendment Regulations, Zambrano carers were entitled to access mainstream benefits (Sanneh) and housing assistance (Pryce).
- Member states are under an obligation to pay Zambrano carers who are in need and unable to work an amount that will enable them to support themselves and their EU citizen child/children within the EU (para 26-27).
- In the UK, section 17 of the Children Act 1989 meets the obligation of providing basic support for Zambrano carers (para 94, 98(iv) and 117).
- Member states are not obliged to provide Zambrano carers with social assistance at the same level as that paid to EU citizens. The levels of social assistance made available to Zambrano carers in the UK post the Amending Regulations is not in breach of any requirement of EU law. Nor is it in breach of the Human Rights Act 1998 or the Equality Act 2010 (para 29-31).
Commentary[su_pullquote align="right"]Zambrano criteria have been met if, without the social assistance, the Zambrano carer would be unable to meet their basic needs[/su_pullquote]The clarification of when the Zambrano status arises is welcome, as is the Court’s conclusion that EU law does not require an assessment of whether a carer will or will not in fact leave the UK with an EU citizen child if denied access to social assistance. This means that decision makers should find that the Zambrano criteria have been met if, without the social assistance, the Zambrano carer would be unable to meet their basic needs, including the needs arising from their caring responsibilities (para 98(v)).On the other hand, there is the bad news - the Court’s conclusion that the UK’s obligation under Zambrano can be met by ‘basic support’ in the form of section 17 support. This means British children of Zambrano carers will continue ‘basic support’ provided by local authorities instead of mainstream social assistance. As the judgment does not contain a positive ruling that section 17 support meets the needs of Zambrano carers “on the ground”, the question of the level of support given to Zambrano carers under section 17 may need to be considered in more detail: see R (Mensah) v Salford City Council  EWHC 3537, in which a Zambrano carer is seeking permission to appeal. The discrimination challenge raises complex issues regarding the effectiveness of EU citizenship and this issue is likely to be considered further by the Supreme Court, with the strong possibility of a future reference to the CJEU (see para 172).The Appellant is seeking permission to appeal in R (HC) v SSWP and Ors and the Secretary of State has applied for permission to appeal in Sanneh v SSWP. [post_title] => Court of Appeal: Sanneh [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => court-appeal-sanneh [to_ping] => [pinged] => [post_modified] => 2017-05-22 11:21:55 [post_modified_gmt] => 2017-05-22 10:21:55 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=51234 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw ) WP_Post Object ( [ID] => 51231 [post_author] => 23 [post_date] => 2017-05-22 11:15:38 [post_date_gmt] => 2017-05-22 10:15:38 [post_content] => [toc]In Chavez-Vilchez and Others v Netherlands C-133/15, the Court of Justice of the European Union significantly extended Zambrano rights beyond those so far recognised by the Home Office and UK courts. The case offers far better guidance than was available in previous cases and emphasises that the impact on children is a primary consideration.
BackgroundThe case involved seven mothers who had applied to the Dutch authorities for residence on the basis of being the primary carers of young Dutch children. They had all been refused residency because it was said that the fathers of the children could care for them, and therefore the children would not be forced to leave the Netherlands and the EU if the mothers were removed.The facts varied. In one case the father was untraceable, in another he lived in supported accommodation in a young person's institution, in some the father had joint custody and in some the father paid some sort of financial contribution and/or had contact with the children to some degree but in most they did not. In a couple of cases the father had stated he was unable and/or unwilling to look after the child.The Netherlands had implemented a restrictive interpretation of Zambrano very similar to that of the United Kingdom. In essence, this required the third country applicant to show that the other parent -- the Union citizen parent -- was not, on the basis of objective criteria, in a position to care for the child, even with the assistance of third parties. Typically, the other parent would need to be in prison, hospitalised or dead.The Court had considered the question of when these rights might be engaged in three previous cases but it would be fair to say that none of us were the wiser for it:
What does "genuine enjoyment" mean?The Court held that where refusal of residence to a mother would force a child to leave the territory of the European Union, this would amount to a deprivation of the "genuine enjoyment of the substance of the rights conferred on them by their status as Union citizens."This much we knew already.The Court goes on, though:
Article 20 TFEU must be interpreted as meaning that for the purposes of assessing whether a child who is a Union citizen would be compelled to leave the territory of the European Union as a whole and thereby deprived of the genuine enjoyment of the substance of the rights conferred on him by that article if the child’s third-country national parent were refused a right of residence in the Member State concerned, the fact that the other parent, who is a Union citizen, is actually able and willing to assume sole responsibility for the primary day-to-day care of the child is a relevant factor, but it is not in itself a sufficient ground for a conclusion that there is not, between the third-country national parent and the child, such a relationship of dependency that the child would indeed be so compelled were there to be such a refusal of a right of residence. Such an assessment must take into account, in the best interests of the child concerned, all the specific circumstances, including the age of the child, the child’s physical and emotional development, the extent of his emotional ties both to the Union citizen parent and to the third-country national parent, and the risks which separation from the latter might entail for the child’s equilibrium.For the first time the Court has added some guidance on what a "genuine enjoyment" might be and when it might be compromised. In particular, it cannot be assumed that just because the other parent is able and willing to care for the child, the child can therefore be left in the country concerned and will not be "forced" to leave. This is very important.The assessment of the question also has to include consideration of:
- Best interests of the child
- Age of the child
- Child's physical and emotional development
- Extent of emotional ties to both parents
- Effect of separation from the 3rd country parent
- Other specific circumstances
Who proves what?The Court also goes on to address who has to prove what. The Court finds that a Member State can require the applicant to furnish proof that the child would be deprived of his or her "genuine enjoyment" of Treaty rights but ends by saying that the Member State has a duty to undertake enquiries:
It is however for the competent authorities of the Member State concerned to undertake, on the basis of the evidence provided by the third-country national, the necessary enquiries in order to be able to assess, in the light of all the specific circumstances, whether a refusal would have such consequences.This is because the burden of proof must not undermine the effectiveness of Article 20 TFEU.
Implications for the UKThe current Home Office approach is set out in the Immigration (European Economic Area) Regulations 2016 at regulation 16 and Home Office policy guidance on derived rights.The Home Office guidance on Derived rights of residence (version 3.0, 11 April 2017) states that even where a parent is unwilling to care for a child, the test is not met (p53):
A lack of financial resources or a lack of willingness to assume caring responsibilities would not, by itself, be a sufficient basis for a person to claim they are unable to care for the relevant person.Chavez-Vilchez very much suggests that this is the wrong approach and imposes too high a test.In the case of Harrison (Jamaica) v Secretary of State for the Home Department  EWCA Civ 1736 the Court of Appeal took a similar line to the Home Office, declining to accept that Zambrano rights might extend beyond a situation where a child was forced to leave the EU:
If the EU citizen, be it child or wife, would not in practice be compelled to leave the country if the non-EU family member were to be refused the right of residence, there is in my view nothing in these authorities to suggest that EU law is engaged. Article 8 Convention rights may then come into the picture to protect family life as the Court recognised in Dereci, but that is an entirely distinct area of protection.Domestic UK case law too will have to be revisited. [post_title] => CJEU: Chavez-Vilchez and Others [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => cjeu-chavez-vilchez-others [to_ping] => [pinged] => [post_modified] => 2017-05-22 11:15:38 [post_modified_gmt] => 2017-05-22 10:15:38 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.freemovement.org.uk/?post_type=course_unit&p=51231 [menu_order] => 0 [post_type] => course_unit [post_mime_type] => [comment_count] => 0 [filter] => raw )