- BY Colin Yeo
Court of Appeal grapples with Zambrano
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The decision of the Court of Justice of the European Union in Zambrano requires a lot of explaining. The process of seeking to understand its impact will continue for some time at an EU level and domestically. In Harrison (Jamaica) v Secretary of State for the Home Department [2012] EWCA Civ 1736 the Court of Appeal has now had a stab.
The judgment explores the Advocate General and Court decisions in Zambrano, McCarthy, Dereci and Iida at paragraphs 12 to 30 and is an invaluable and highly recommended summary of where we are now.
The parties agreed that the application of the Zambrano test requires a court to focus on the question whether as a matter of reality the EU citizen would be obliged to give up residence in the EU if the non EU national were to be removed from the EU. Where the parties disagreed was over whether the Zambrano principle can apply where an EU citizen is not forced, as a matter of substance, to follow the non EU national out of the EU, but where their continuing residence in the EU is affected in some sense because, for example, the quality of life is diminished. The Secretary of State maintained that the case law indicates that nothing short of forcing departure will satisfy the Zambrano test and the appellants argued that diminution in quality of life by deprivation of a parent would suffice.
Lord Justice Elias gives the leading judgment and prefers the arguments of the Secretary of State while recognising that EU law may develop to give greater protection to a citizen’s right of residence than it does at present.
The current position therefore seems to be that a situation in which the EU citizen will be forced to leave the country of residence will succeed under Zambrano (such as where the sole carer or both parents of an EU citizen child face removal) but where there is an element of choice in whether the EU citizen leaves such a situation will fail. In short, the Court of Appeal largely upholds the Home Office interpretation of Zambrano as incorporated into the Immigration (EEA) Regulations 2006.
Arguments that remain outstanding include:
1. Whether the Court of Appeal is right in Harrison on Zambrano only applying in cases of forced departure.
2. Whether Zambrano only applies to a citizen of the country of residence, e.g. a British child resident in the UK, or whether it extends to a citizen of one EU country resident in another, e.g. an Irish child resident in the UK.
3. Whether Zambrano provides an absolute right of residence for the EU citizen where he or she will be forced to leave even if there are public policy reasons in favour of the EU citizen’s departure, such as a parent having committed criminal offences.
All three of these issues will be the subject of further litigation, no doubt.
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3 responses
Strictly speaking, a British child is never forced to leave, the child can go into local authority care if the sole carer or both parents are removed. Not even the government proposes something so nasty. But the argument about “grades of the necessity for the child to leave” holding up in court is very unfortunate.
If you
-have legal custody of a German child,
-can prove a parent-child relationship where not living with the child,
-are not a dangerous criminal,
then you can get a residence permit, end of. That predates Zambrano by decades.
So since the government claims to care about families and the welfare of children, that’s just one model which could be implemented, with minimal impact on the statistics which are not reliable anyway.
“e.g. an Irish child resident in the UK.”
Ireland implemented Zambrano in such a way that the child could go to Ireland and in many cases be joined by the previous carers. At least one situation where it’s not necessary to fight the HO. Another model which the UK could use.
“Not even the government proposes something so nasty.”
Agreed, but the UKBA used to take that line some time ago, possibly pre Section 55. Very costly taking children into care.
If the German model and UK model are legally different, might the ECJ have something to say about that?
The IJ seemed to follow the Govt’s interpretation too closely for my liking. I thought there was meant to be an “independent judiciary”.
“So since the government claims to care about families and the welfare of children…” – The recent legislation ruling that widows using the Zambrano case can no longer claim child benefit or child tax credits for their British children should indicate that level of “care”.
Good comments as usual, Mutly.
The German position derives from the constitution (Grundgesetz/Basic Law) which provides at Article 6 that the state must protect families and their rights.
It provides, according to the courts, that there can be no maintenance or accommodation requirement for parents of minor Germans and only exceptionally for spouses.
The courts have so far accepted an A1 German requirement for spouses, but its consitutionality is not yet finally settled and the ECtHR may be consulted.
The German court’s rationale is that adult spouses can cope with being separated for a while whilst the applicant learns German, or the German spouse can stay and teach them.
Whereas the courts don’t accept any possible separation of parent and child for immigration reasons because the effect on the child would be much greater than on adult spouses.
Interestingly for UK comparisons, those who have a German spouse and child can choose their route, and applying based on the child is easier, no A1 rule. Settled status in both cases possible after three years with the same requirements.
Strictly speaking it’s probably not relevant to the ECJ as it’s a national law and already fulfills the Zambrano requirements. But if a way could be found to make the same apply EU wide it would be good. That would replace the UK access to child visa with more favourable rules too.
However Germany doesn’t recognise unmarried partnerships. Fine if there’s a joint child, but otherwise it doesn’t fall under the definition of family as meant in the 1949 constitution.
Agreed, locking widows under Zambrano out of CB and child tax credit says a lot. Next the gov’t will turn around and say that if they then rely on charity, that they don’t havwe sufficient resources. It’s a lot of effort to go to to wantonly harm people just to appease potential UKIP voters, who have little understanding of EEA rules or ECJ cases anyway.
Perhaps there’s potential here for a case at the Strasbourg Court. There is a right to a diginified existence as well as family life, it’s not one or the other. I’d be interested if anyone in Europe makes such a case.