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Zambrano (sort of) incorporated into regulations at last

Zambrano (sort of) incorporated into regulations at last

The Immigration (European Economic Area) (Amendment) (No. 2) Regulations 2012 (SI 2012/2560) come into force on 8 November 2012. There are two bits of good news for applicants and one piece of bad news. For previous news, updates and commentary on Zambrano and developments since that case see the EU citizenship blog topic.

The main criteria for the UK Border Agency interpretation of Zambrano are inserted at paragraph 15A, new sub paragraph (4A) and are as follows:

(a) The applicant must be the primary carer of a British citizen

(b) That British citizen must be residing in the United Kingdom; and

(c) That British citizen would be unable to reside in the UK or in another EEA State if the applicant were required to leave.

This actually seems like a fair stab at implementing Zambrano and the various follow up cases and is less prescriptive than the previous UK Border Agency policy. It also finally allows these issues to be properly tested in the immigration tribunal. I am therefore classifying this as good news.

Many people have made Zambrano applications in the last year and a half. Where those applications were accepted as ‘valid’ but not decided, we can now expect decisions to start trickling through. Where the application was rejected as ‘invalid’, a matter of some controversy, a fresh application can now be made to enable judicial consideration of whether the criteria are satisfied.

The new amended regulations also make two other changes worth mentioning. Firstly, the requirement in the 2006 regulations in respect of extended family members that the applicant resided in another EEA state has finally been dropped. This is again good news. Secondly, the right of appeal is drastically curtailed for those asserting a durable relationship. Very strangely, where a person cannot produce ‘sufficient evidence to satisfy the Secretary of State that he is in a relationship with that EEA national’ then there is no longer a right of appeal to the tribunal to prove that relationship. This attempt to limit rights of appeal according to an evidential assessment by one of the parties to that appeal seems very odd indeed and may well be susceptible to a lawfulness challenge.

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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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