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More on Zambrano guidance
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The UK Border Agency has released the slightly more detailed guidance on Zambrano-based applications that was referred to in my earlier post on this. This follows from a Freedom of Information request, although in fact the document had already been provided to ILPA. Frankly, it does not take things a great deal further and there is still little indication of what is meant by ‘adequate evidence of dependency’. However, a bit more guidance is provided, and it looks more restrictive than might have been hoped. Firstly it addresses children cases:
In practice, the majority of cases are likely to come within this category and so will involve a British citizen child who is dependent upon a third country national parent. In order for an applicant/appellant to demonstrate that they are a potential beneficiary within this category then the following criteria need to be met:
- there is evidence that the child is under the age of 18, and
- there is evidence that the child is a British citizen, and
- there is evidence of a relationship between the child and the parent/guardian/carer, and
- there is evidence of the child’s dependency on the third country national parent/guardian/carer (care responsibilities, court orders are examples)
In cases where there is another parent/guardian/carer upon whom the child is, or can become, dependent then this would fall out of scope. This is because removal of the third country national in such circumstances would not oblige the child to leave the EU because an alternative carer is available.
The section on adult cases makes clear that UKBA does not have spouses in mind:
In relation to this category of applicant/appellant clear medical evidence, for example of a severe physical and/or mental disability, supported by (a) evidence which shows the adult British citizen is wholly dependent upon the third country national for their care and (b) evidence that no alternative care is available. Such cases are likely to be rare and will require consideration on an individual basis.
The guidance also states that deportation action (i.e. involving criminal convictions) will not be suspended by a Zambrano application, although enforcement action in an ordinary removal case will be suspended.