Zambrano considered

This entry is part 2 of 9 in the series Zambrano series
[UPDATE: see new post on McCarthy]

The judgment of the Court of Justice of the European Union in the case of Zambrano (C-34/09) may mark the watershed between the history of European Community free movement law and the future of unconditional European Union citizenship rights.

Free movement law historically and conceptually depended on two elements: facilitating movement across borders and facilitating economic or protected activity of some sort, such as work, self employment or studies. Previous cases such as Baumbast, Chen and Metock started the evolution away from these principles. Zambrano represents more of a revolution, achieved by basing the decision entirely on EU citizenship rights rather than free movement law.

Previous cases relied on by third country nationals have been founded mainly on the Citizens’ Directive (Directive 2004/38) or its predecessors. Zambrano is based on Article 20 of the Treaty on the Functioning of the European Union, one of the two fundamental treaties that underpin the entire EU structure. Article 20(1) provides as follows:

Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.

The judgment itself is confusingly simple. The ratio is extremely briefly expressed:

42. In those circumstances, Article 20 TFEU precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union (see, to that effect, Rottmann, paragraph 42).

43. A refusal to grant a right of residence to a third country national with dependent minor children in the Member State where those children are nationals and reside, and also a refusal to grant such a person a work permit, has such an effect.

And that is it, pretty much. We have to assume that there was dissention amongst the judges, otherwise fuller reasons would have been given.

This laconic brevity contrasts markedly with the Opinion of Advocate General Eleanor Sharpston QC. Sharpston’s opinion is a must-read, not only because of her subtle and persuasive exposition of the law but also because it is the only way we can shed light on the lacuna in the Court’s reasoning.

She argues that the time has come explicitly to recognise that Articles 20(2)(a) and 21(1) TFEU (‘the right to move and reside freely within the territory of the Member States’) confer both a right to move around the Union and, separately, a right to reside within the Union without moving. She urges the Court to find that Union citizens who do move and who do not move should not be treated differently in exercise of the fundamental rights conferred by Union citizenship (‘reverse discrimination’). She accepts, though, that the fundamental right to family life under EU law cannot yet be invoked as a free-standing right.

The problem for lawyers and judges dealing with the consequences that flow from Zambrano is that Sharpston’s reasoning is neither explicitly adopted nor rejected by the Court, but both Sharpston and the Court plainly do reach the same final destination.

However, we can detect that at least some of Sharpston’s reasoning must have been accepted by the Court, even if implicitly rather than explicitly. The Court certainly does accept that Union citizenship confers a right to reside in a Member State, as it says it does so at paragraph 45 and in the build up to that paragraph. In doing so, the Court must have accepted Sharpston’s opinion that citizenship confers separate rights to move and to reside. After all, the facts of the case require that the Court must have accepted this, as the Zambrano children had not in fact moved across any borders and were nonetheless held to have a right to reside.

Many questions are posed by the decision in Zambrano. For example, in traditional free movement law terms, and/or under the Citizens’ Directive, what is the status of the Zambrano children and those like them? Do they enjoy the free movement rights set out in the Citizens’ Directive (initial residence, residence, permanent residence, right of family unity, protection against deportation) but there explicitly linked to the various forms of economic activity? What is the status of the Zambrano parents? If they do not enjoy the rights set forth in the Citizens’ Directive, what immigration status must they be accorded by a Member State and for what period? Is that right of residence an inherent one conferred by the Treaties or is it one for which they must apply and be granted at the discretion of a Member State?

More worryingly for the UK Border Agency, how far do the principles in Zambrano apply in different factual scenarios? For example, what is the effect, if any, of Zambrano on the relatively common situation where one parent is a third country national with no right to reside or work, the other parent is British or settled and the child is therefore also British? Is there an interference with the Union citizenship rights of the British parent and/or child if the third country national parent faces removal?

What rights do adult citizens of the European Union possess who have not moved between borders, such as British citizens resident in the United Kingdom? Can they elect to rely on the enhanced and generous rights of the Citizens’ Directive, whereby a spouse automatically has a right to reside in the same country as the Union citizen, irrespective of the maintenance, accommodation, age and English language requirements of the UK immigration rules? Again, are the rights acquired automatically as in EC free movement law, or must they be applied for and granted at the discretion of the UK Border Agency, as under the immigration rules?

At the very least, Zambrano offers protection against what might be called ‘constructive deportation’. This certainly applies to child citizens of the Union, where removal of one or both parents will effectively force the child to leave the Union. The same arguments may well also apply in at least some adult cases. Forcing a spouse to leave the Union to enjoy family life abroad arguably amounts to a similar interference where there is good reason why that spouse cannot be expected to relocate. If correct, this might replace the plethora of spouse Immigration Rule requirements other than bare marriage with a simple test of whether relocation abroad is reasonable or not.

One can imagine that the UK Border Agency will argue strongly against such an approach, and that the Immigration and Asylum Chambers, long resistant to any perceived extension of EC free movement rights, will also be reluctant to apply the logic of Zambrano outside very narrow factual confines. There are arguments to justify a cautious approach. The Opinion of Advocate General Kokott in the McCarthy case contrasts markedly with that of Sharpston and with the judgment of the Court in Zambrano, so it will certainly be very interesting to see what the Court eventually does in McCarthy. [UPDATE: see post on McCarthy]

For those interested in the effect of Zambrano, Adrian Berry and I will be delivering a training course on behalf of HJT Training on 30 March 2011. Click here for details and to book.

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Colin Yeo

About Colin Yeo

A barrister specialising in UK immigration law at Garden Court Chambers in London, I have been practising in immigration law for 13 years. I am passionate about immigration law and founded and edit the Free Movement immigration law blog.