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I’ve previously posted up the publicly available UKBA guidance on Zambrano, but a commenter very helpfully posted a link to more information available on the Wornham & Co blog. I don’t myself post letters to or from ILPA unless the information is public, but there is some suggestion in the letter that information has already been passed to ‘select’ representatives and Wornham & Co have put the letter ‘out there’ anyway now!
The key passages are as follows:
The judgment applies only to cases in which the dependent Union citizen is within their state of nationality. For the United Kingdom this means that the judgment applies only to cases involving dependent British citizens. Secondly, it has been agreed the judgment does not apply in cases where dependency is simply financial. There are, therefore, two classes of potential beneficiary:
A third country national adult upon whom a British citizen child is dependent
A third country national adult upon whom a British citizen adult is dependent.
In order to demonstrate that a person is the potential beneficiary of this judgment and be issued with a certificate of application, then the following evidence will be required from the applicant:
Evidence the dependent national is a British citizen, and
Evidence of relationship, and
Adequate evidence of dependency between the applicant and British citizen.
The letter also refers to guidance being given to staff, which seems to imply that more detailed guidance is available somewhere but has not been published. This must surely be the case because the phrase ‘adequate evidence of dependency’ is very far from self explanatory. I’ve now gotten round to putting in a Freedom of Information request and if I have any joy will let you know.
This also gives me a chance to make some further comment on the guidance.
Neither the British citizen nor the foreign national need be a child – UKBA is applying Zambrano in spouse cases as well as children cases, as long as ‘adequate evidence of dependency’ is presented (whatever that means)
Applications should be made on an EEA2 (see here for confirmation)
Between March 2011 and June 2011, UKBA received 98 applications based on Zambrano (see here for source)
New applications from 11 September 2011 onwards will not be decided but will be acknowledged by UKBA. The acknowledgement letter will permit the applicant to work in the meantime, and a decision will only be made on an application once the EEA regulations have been amended, which will occur at the earliest towards the end of 2011.
There is a reference to ‘sole carer’ in the public guidance, such as it is. This is not a criterion as such, I would suggest. The words are used in the context of describing the nature of the Zambrano ruling. The test that UKBA seem to be applying is one of whether there is adequate evidence of dependency, and not just financial dependency.
The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.
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?
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’
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..
“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.
“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.”
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.
I’ve previously posted up the publicly available UKBA guidance on Zambrano, but a commenter very helpfully posted a link to more information available on the Wornham & Co blog. I don’t myself post letters to or from ILPA unless the information is public, but there is some suggestion in the letter that information has already been passed to ‘select’ representatives and Wornham & Co have put the letter ‘out there’ anyway now!
8 responses
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?
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’
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..
“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.
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.”
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.