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Did the Home Office inadvertently strengthen the rights of Zambrano carers in 2018?


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In Velaj (EEA Regulations – interpretation; Reg 16(5); Zambrano) [2021] UKUT 235 (IAC) the Upper Tribunal looked at whether the Home Office accidentally liberalised the regulations on when the primary carer of a British child can be removed from the UK. 

The tribunal concluded that it did not. As a result, the law on these “Zambrano” rights remains unchanged.

In any case, Zambrano rights will soon be of purely historic interest due to Brexit. If deciding whether or not it is worth making an out-of-time application based on Zambrano see Nath’s excellent briefing: To Zambrano or not to Zambrano?

Background: Zambrano carers

In a case called C‑34/09 Zambrano the Court of Justice of the European Union decided that a non-EU national could derive a right to reside in the EU through their EU citizen child. The child cannot be deprived of their rights as an EU citizen by being required to leave the territory of the EU due to the removal of their primary carer.

This was implemented in the UK through regulation 16(5) of the EEA Regulations 2016, which sets out the following requirements:

  1. The applicant must be the primary carer of a British citizen;
  2. The British citizen must be residing in the UK; and
  3. The British citizen would be unable to reside in the UK or in another EEA state if their primary carer (or both primary carers where parental responsibility is shared) left for an indefinite period.

Regulation 16(8) says that a person is still the primary carer of a British citizen if they share the responsibility for the child’s care equally with one other person. Before 2018, it went on to say that the other person cannot be a British citizen, someone with a right to reside under the EEA Regulations, or someone with indefinite leave to remain.

This rider significantly restricted the number of people who could rely on this provision. It meant that someone such as Mr Velaj, who has a British wife who would remain in the UK if he is deported, could not qualify for a Zambrano right to reside as he could not meet the definition of “primary carer”. The logic behind this is that the British child would not be compelled to leave the UK in such circumstances; they can stay here with the other parent.

That requirement was removed from regulation 16(8) following a case called C-133/15 Chavez-Vilchez, which held that the status of the other parent is not decisive.

Mr Velaj argued that, although he couldn’t meet the requirements of EU law itself, he could meet the requirements of regulation 16 as amended.

An inadvertent expansion of Zambrano rights?

Under EU law, only single parents or couples who are both migrants with no right to remain in the UK can rely on Zambrano (i.e. where there is no one else who could care for the child, meaning they are compelled to leave the UK).

Mr Veja argued that the updated version of regulation 16 accidentally changed UK law so that anyone who is the primary carer of a British child could rely on regulation 16, regardless of whether there is another parent who could remain in the UK and care for the child. This interpretation would have expanded considerably the number of people who could rely on Zambrano.

The Upper Tribunal’s decision

The tribunal decided that the amended regulation 16 does not have this liberalising effect. That was because:

  1. Such an interpretation would be contrary to the intent and effect of sections 117B(6) and 117C(5) of the Nationality, Immigration and Asylum Act 2002, which contain more stringent standards for removal of the parents of British children; and
  2. The use of the word “unable” in regulation 16(5) is part of the legal test. The key issue of inability to reside in the UK requires detailed consideration and a causal link with the departure of both carers. It cannot be assumed that both parents will leave the UK.

As a result, it remains the case that someone can only rely on a right to reside based on Zambrano where the British child will be compelled to leave the territory of the EU as a result of the Home Office’s decision (i.e. there is no one else who can care for them in the UK).

The official headnote

(1) In considering a piece of legislation designed to implement European law, a purposive construction should be adopted as set out in Marleasing S.A v LA Commercial Internacional de Alimentacion S.A. [1992] 1 CMLR 305 and applying the principles set out in British Gas Trading Ltd v Lock and Anor [2016] EWCA Civ 983 at [38].

(2) Where implementing legislation goes beyond what is required by a Directive or to ensure compliance with rulings of the Court of Justice, there is no imperative to achieve a “conforming” interpretation, but a careful analysis must be undertaken to determine if it was intended that the implementing legislation was to go beyond what flows from the Directive; in any event, the same means of construction set out in (1) must apply.

(3) On that basis, in construing reg. 16 (5) of the Immigration (European Economic Area) Regulations 2016 (“the EEA Regulations”), a purposive approach must be followed, bearing in mind also that the question of whether a child would be compelled to leave is a practical test to be applied to the actual facts and not to a theoretical set of facts (Patel v SSHD) [2019] UKSC 59 at [30] (applying Chavez-Vilchez [2017] EUECJ C-133/15). That is a necessary corollary of the use of “unable” in reg. 16(5).

(4) In order to meet the requirements of reg 16(5), the key issue is inability to reside in the United Kingdom which requires a detailed consideration of the circumstances of both carers.

(5) The EEA Regulations were revoked on 31 December 2020. Schedule 3 of the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations (SI 2020/1309) sets out those parts of the EEA Regulations preserved for immigration (but not social security) purposes; reg.16 is not one of the provisions preserved.

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Iain Halliday

Iain Halliday is an Advocate (the Scottish equivalent of a Barrister) at Themis Advocates. He specialises in public law, including immigration and asylum, retained EU law, human rights, and judicial review.