Relying on Zambrano from abroad

Judgment in MA and SM (Zambrano: EU children outside EU) Iran [2013] UKUT 00380 (IAC) which confirms that it is possible to rely on Zambrano from abroad:

In EU law terms there is no reason why the decision in Zambrano could not in principle be relied upon by the parent, or other primary carer, of a minor EU national living outside the EU as long as it is the intention of the parent, or primary carer, to accompany the EU national child to his/her country of nationality, in the instant appeals that being the United Kingdom. To conclude otherwise would deny access, without justification, to a whole class of EU citizens to rights they are entitled to by virtue of their citizenship.

It is of course not enough to have a child who is British; the Zambrano point arises where it is possible to show that the child would be unable to live in the UK without the parent.  This is a higher test than whether it is desirable for the child to live without the parent.

In the first of the two cases, the UK-based parent was unable due to mental health problems to care for the British child.  It was therefore necessary in EU law for the Turkish parent to come to the UK in order to allow the British child to enjoy his rights within the EU.

In the second, one parent was able to care for the British children and indeed had been caring for one son in the UK.  There was therefore no necessity under EU law for the second parent to come to the UK and so the Zambrano point was not met.  However, when Article 8 and s.55 were applied, it was not proportionate to exclude one parent and therefore deprive the children of growing up with both of their parents.

Zambrano finally implemented!

Great news for all those waiting for a decision in Zambrano cases – there is finally going to be an amendment to the EEA Regulations implementing it.  It’s found here and relates to the “derivative right of residence,” inserted at Regulation 15A, with the criteria being that

(a)the applicant is the primary carer of a British citizen;
(b)the relevant British citizen is residing in the United Kingdom; and
(c)the relevant British citizen would be unable to reside in the UK or in another EEA State if the applicant were required to leave.

This means that a parent who has a British child, but does not themselves have leave to remain in the UK, will be entitled to remain here under the EEA Regulations as long as the child is here.

The reasoning behind this is that a British child is an EEA national as well as a British national, and that it would be fundamentally wrong to require a citizen of the Union to leave it merely for want of a carer.

It doesn’t seem at this stage that this is intended to lead to permanent residence.  However, that may well be subject to challenge.

The new Regulations will be implemented on 8 November 2012.

Zambrano: how long is too long?

The case of Ruiz Zambrano was decided in March 2011, holding that the non-EEA parent of a British citizen was entitled to remain in the UK on the strength of the child’s EEA citizenship.

In September 2011, UKBA released a news item, stating that

We will amend the regulations in due course to enable a person to be issued with a document confirming that they have a right to live in the UK as a result of the Ruiz Zambrano judgement. However, in the meantime, we will issue a certificate of application to those who are able to show:

  • evidence that the dependent national is a British citizen;
  • evidence of the relationship between the applicant and the British citizen; and
  • adequate evidence of dependency between the applicant and the British citizen.

This certificate will enable a person to work in the UK while their application is outstanding. Once changes to the regulations are made, the application will be given full consideration and documentation will be issued under the regulations to those who meet the final agreed policy.

Well, that was a year ago, and nothing has happened.  The EEA Regulations were amended – on 16 July 2012 – but did not include the Zambrano cases.

People who have applied under the Zambrano rules are now stuck in limbo.  Those whose applications are valid have received a “certificate of application,” saying that they are entitled to live and work in the UK while their application is decided, but with no amendment to the Regs in sight, this looks to be all that they will get.

This obviously has some serious effects for those people.  If they are a parent of British children, those children may want to travel abroad.  The parent can’t, or at least not without cancelling their application.  Although they have the technical right to work in the UK, in difficult economic times an employer is unlikely to prioritise an application from someone who has a certificate of application valid for only six months.  Applications by family members abroad to visit them may be met with some degree of cynicism.

At some stage UKBA must implement Zambrano properly.  The only question is when – and that may be influenced by how long applicants are prepared to wait without taking further action.

New EEA rule: derivative residence

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Well, it’s been a while since the case of Chen was decided, but the UK has finally got around to implementing it – after a fashion – with the new EEA rules in today on “derivative residence.”  The new Rule 15A will also implement Ibrahim and Teixeira.

The text of the new rule is set out below, but as a broad summary, what it means is that

1.  The primary carer of a minor EEA national will be entitled to a derivative residence card – although the child must have health insurance;
2.  The child of an EEA national, and his / her non-EEA parent, will be entitled to derivative residence if the child(ren) are in school and were entitled to be here under the EEA Regulations when they went to school first (e.g. the EEA national parent did have a job but lost it, and the children are in education here).  The non-EEA parent only gets the right to reside where requiring them to leave would prevent the child from continuing in education in the UK.

The derivative residence status will not confer Indefinite Leave on the recipient, although that may well be subject to challenge.

 

“15A.  Derivative right of residence

(1) A person (“P”) who is not entitled to reside in the United Kingdom as a result of any other provision of these Regulations and who satisfies the criteria in paragraph (2), (3), (4) or (5) of this regulation is entitled to a derivative right to reside in the United Kingdom for as long as P satisfies the relevant criteria.

(2) P satisfies the criteria in this paragraph if—

(a)P is the primary carer of an EEA national (“the relevant EEA national”); and

(b)the relevant EEA national—

(i)is under the age of 18;

(ii)is residing in the United Kingdom as a self-sufficient person; and

(iii)would be unable to remain in the United Kingdom if P were required to leave.

(3) P satisfies the criteria in this paragraph if—

(a)P is the child of an EEA national (“the EEA national parent”);

(b)P resided in the United Kingdom at a time when the EEA national parent was residing in the United Kingdom as a worker; and

(c)P is in education in the United Kingdom and was in education there at a time when the EEA national parent was in the United Kingdom.

(4) P satisfies the criteria in this paragraph if—

(a)P is the primary carer of a person meeting the criteria in paragraph (3) (“the relevant person”); and

(b)the relevant person would be unable to continue to be educated in the United Kingdom if P were required to leave.

(5) P satisfies the criteria in this paragraph if—

(a)P is under the age of 18;

(b)P’s primary carer is entitled to a derivative right to reside in the United Kingdom by virtue of paragraph (2) or (4);

(c)P does not have leave to enter, or remain in, the United Kingdom; and

(d)requiring P to leave the United Kingdom would prevent P’s primary carer from residing in the United Kingdom.

(6) For the purpose of this regulation—

(a)“education” excludes nursery education; and

(b)“worker” does not include a jobseeker or a person who falls to be regarded as a worker by virtue of regulation 6(2).

(7) P is to be regarded as a “primary carer” of another person if

(a)P is a direct relative or a legal guardian of that person; and

(b)P—

(i)is the person who has primary responsibility for that person’s care; or

(ii)shares equally the responsibility for that person’s care with one other person who is not entitled to reside in the United Kingdom as a result of any other provision of these Regulations and who does not have leave to enter or remain.

(8) P will not be regarded as having responsibility for a person’s care for the purpose of paragraph (7) on the sole basis of a financial contribution towards that person’s care.

(9) A person who otherwise satisfies the criteria in paragraph (2), (3), (4) or (5) will not be entitled to a derivative right to reside in the United Kingdom where the Secretary of State has made a decision under regulation 19(3)(b), 20(1) or 20A(1).”.

Dual nationals under EEA law

From 16 July 2012, a dual UK / EEA national is not to be treated as an EEA national for the purposes of the EEA Regulations.

The purpose of this is to implement McCarthy.  That decision concerned a woman who wanted to bring a non-EEA spouse to the UK.  She was a dual British / Irish national, but had only ever lived in England and – crucially – was not working, so couldn’t argue that she was exercising Treaty rights in the UK.

Until now, an EEA national who was also a UK national would be treated as an EEA national for the purposes of EEA law, as long as they were exercising Treaty rights by working or studying in the UK. For example, a dual French / UK national could rely on their French nationality to take advantage of the much more sympathetic EEA regulations rather than having to apply under the more stringent domestic laws.

The solution being brought in, which is simply to exclude all dual UK nationals from relying on EEA law, is perhaps an unnecessarily drastic way of resolving this.  Yes, it will prevent those like Mrs McCarthy, who was to all intents and purposes a British citizen from exploiting the loophole.

However, it will also have repercussions for EEA nationals who are thinking of taking up British nationality.  If someone is in the UK as a worker and has been for six years, then they are entitled to apply for British nationality.  This is something which hitherto has been straightforward, but prospective citizens beware: taking up British nationality now will exclude you from bringing in dependent parents, or adult dependent children.  Under the EEA Regulations, it is (relatively) easy to apply for a dependent parent to join you, but under domestic legislation it is increasingly difficult.  This is something which EEA nationals in the UK will need to consider prior to taking up British nationality.