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Zambrano case

Zambrano case

[UPDATE 22/3/11: see latest post on Zambrano]

In a judgment just out, Zambrano v ONEm Case C-34/0 the European Court of Justice seems to have held that the parents of a child who is a national of a Member State must be granted the right to work and the right of residence in that Member State in order to protect the right of the child to live in Europe.

This is an astonishing proposition, if my reading of the case is correct, and represents a massive extension of the principle in the Chen case.

The facts were that a Colombian couple claimed asylum in Belgium and were refused but never removed. They had two children in Belgium, both of whom were Belgian citizens. The father worked for a time but this was illegal work and after a raid on his employer he was sacked. He attempted and failed to claim unemployment benefits.

The questions for the Court were whether this factual situation gave rise to a right to work and/or a right to reside for the parents in order to protect the rights of the children. The Court has answered these questions in the affirmative, it seems. At paragraph 45 the ECJ concludes as follows:

“…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 of residence in the Member State of residence and nationality of those children, and from refusing to grant a work permit to that third country national, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen.”

Despite the reference in this paragraph to European Union citizens, the facts of the case were that the children were Belgian and lived in Belgium: there was no question of direct interference with free movement rights to move between other EU countries. In Chen the child was living in the UK but was an Irish national and had independent means of support not involving the parent working in the UK. Zambrano extends the principle to, for example, a British child living in Britain and with no independent means of support.

In contrast the Tribunal and Court of Appeal in the UK (see W (China) v Secretary of State for the Home Department [2006] EWCA Civ 1494) have held that Chen cannot be used to ‘create’ a right a work that did not previously exist independently.

Have a look at the judgment yourself and see if you agree with my reading. Comments very welcome indeed. I’m having difficulty believing this reading is correct. It would mean, for example, that any British citizen has a right of residence in Britain under EC law. Why would such a person then need to make use of the UK immigration rules for family members? Why not make use of EC law family rules instead? No need for maintenance and accommodation and so on.

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Colin Yeo
Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder and editor of the Free Movement immigration law website.

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