8 responses

1. Using the form EEA2 is very useful confirmation. So there is no fee for a Zambrano application, and a decision has to be made within 6 months?

   Your comment about UKBAs use of the term ‘sole carer’ is apt, as the judegement in the Zambrano case used the (oxymoron?) term “sole carers”.

   “•Neither the British citizen nor the foreign national need be a child ” – Are you suggesting that Zambrano could be used where there is a British parent and non-British child? (Parent British by descent & child born outside UK)

   Do you foresee (accelerated) “Entry Visas” for potential Zambrano benficiaries who reside outside the EU? (Important for people who are considering leaving the UK).

   Why does the UKBA think that Article 20 enjoyment excludes a non-EU parent of an EU National child making a Zambrano, even say after a Chen refusal?

   1. The UKBA has excluded the Non-EU parents of EU nation children (non Britons) who are resident in the UK. Is there any ambiguity in the conclusion of the ECJ?

      “Article 20 TFEU is to be interpreted as meaning that it precludes a Member State from refusing a third country national upon whom his minor children, who are European Union citizens, are dependent, a right of residence in the Member State of residence and nationality of those children, and from refusing to grant a work permit to that third country national, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen.”

      Nedd help with the appropriate translation of ‘ a right of residence in the member state of residence’

2. would be very useful to establish exactly what is meant by dependency and how such should be met with regards demonstrating this. The letter which I have from the home office states that applications would be accepted where an applicant POTENTIALLY meets the requirements. Surely therefore you must merely send in enough evidence to open up the question as to whether dependency exists. However on providing a birth certificate, proof living together, photographs and references from others confirming relationship and dependency they have returned the application stating not enough evidence has been provided to show the potential scope of Zambrano is met. I would therefore recommend sending as much evidence as possible to demonstrate dependency as they do not appear to be following their own guidance on POTENTIALLY meeting the scope of Zambrano and are rather using a policy of only accepting applications which they feel sufficient evidence has been provided to show they DO meet the scope but not publicizing what they expect to be sent..

3. “UKBA is applying Zambrano in spouse cases”
   This is particularly interesting given the planned amendments to the spouse route, especially if the HO allows Zambrano to lead to PR without the PR question taking potentially several years to reach the ECJ. The question of course is how spouses would show (not “simply financial”) dependency. Proof of a genuine relationship as would be required under the spouse rules also suggests emotional dependency, although the HO may not include that. It may be restricted to carers where the British spouse needs care going beyond the migrant spouse’s presence itself, by analogy to the way that a parent can argue that a child needs a parent as a carer. This will probably be tested in court over time, because it may provide an alternative to FLR(M) with its fees and requirements, at least for spouses already in the UK.

   It seems there is a lot still to be seen regarding Zambrano, in addition to PR of course the exact definition of dependency the HO uses and the pending ECJ case and future ECJ cases. Also whether it applies when the applicant is not in the UK or, as seems less likely, when the British citizen is not (yet) in the UK.

   If I understand the Irish position correctly – I’m certainly no expert on Ireland – the Irish child must, in addition to living in Ireland at the time, have been born in Ireland (ie. not Irish by birth outside Ireland to an Irish parent). But the applicant does not need to be in Ireland, they can apply to enter/return unless previously deported due to criminal offences. So there’s certainly room for different interpretations and a lot of questions until the courts provide further rulings.

4. HO’s Brief Description of DEPENDENCY
   http://www.whatdotheyknow.com/request/more_on_zambrano#incoming-215516

   “In terms of evidence of dependency, this will depend upon the individual
   circumstances of the case, but financial dependency alone would not be
   sufficient. For children claiming dependency upon a parent/carer, then
   evidence of the relationship and/or any care responsibilities/court
   orders would be appropriate.

   In relation to adults who are dependent upon another adult then clear
   medical evidence, for example of a severe physical and/or mental
   disability would be appropriate. Each case would, however, be considered
   on its individual merits.

   UKBA is still finalising its position on the scope and on the levels of
   dependency and further guidance on this will be published on the UKBA
   website as changes to the Regulations are progressed.”

5. Michael
   The Zambranos were living in Belgium, and had Belgian children. The judgement was made on the basis that the children were in their own member state.

   The principal of the judgement is that an EU state cannot deny “Article 20” enjoyment to EU citizens, and Constructive Deportation from member state is just one example of that.

   The UKBA often takes the most restrictive interpretation of case law.

   “Nedd help” – not from someone who can’t spell. BTW the UKBA used my yahoo answer of 7 months ago to formulate its Zambrano policy.