In a new case, Chavez-Vilchez and Others v Netherlands C-133/15, the Court of Justice of the European Union has significantly extended Zambrano rights beyond those so far recognised by the Home Office and UK courts. The case offers far better guidance than was available in previous cases and emphasises that the impact on children is a primary consideration.

Background

The case involved seven mothers who had applied to the Dutch authorities for residence on the basis of being the primary carers of young Dutch children. They had all been refused residency because it was said that the fathers of the children could care for them, and therefore the children would not be forced to leave the Netherlands and the EU if the mothers were removed.

The facts varied. In one case the father was untraceable, in another he lived in supported accommodation in a young person’s institution, in some the father had joint custody and in some the father paid some sort of financial contribution and/or had contact with the children to some degree but in most they did not. In a couple of cases the father had stated he was unable and/or unwilling to look after the child.

The Netherlands had implemented a restrictive interpretation of Zambrano very similar to that of the United Kingdom. In essence, this required the third country applicant to show that the other parent — the Union citizen parent — was not, on the basis of objective criteria, in a position to care for the child, even with the assistance of third parties. Typically, the other parent would need to be in prison, hospitalised or dead.

The Court had considered the question of when these rights might be engaged in three previous cases but it would be fair to say that none of us were the wiser for it:

• Zambrano C-34/09
• Dereci C-256/11
• Iida C-40/11

What does “genuine enjoyment” mean?

The Court held that where refusal of residence to a mother would force a child to leave the territory of the European Union, this would amount to a deprivation of the “genuine enjoyment of the substance of the rights conferred on them by their status as Union citizens.”

This much we knew already.

The Court goes on, though:

Article 20 TFEU must be interpreted as meaning that for the purposes of assessing whether a child who is a Union citizen would be compelled to leave the territory of the European Union as a whole and thereby deprived of the genuine enjoyment of the substance of the rights conferred on him by that article if the child’s third-country national parent were refused a right of residence in the Member State concerned, the fact that the other parent, who is a Union citizen, is actually able and willing to assume sole responsibility for the primary day-to-day care of the child is a relevant factor, but it is not in itself a sufficient ground for a conclusion that there is not, between the third-country national parent and the child, such a relationship of dependency that the child would indeed be so compelled were there to be such a refusal of a right of residence. Such an assessment must take into account, in the best interests of the child concerned, all the specific circumstances, including the age of the child, the child’s physical and emotional development, the extent of his emotional ties both to the Union citizen parent and to the third-country national parent, and the risks which separation from the latter might entail for the child’s equilibrium.

For the first time the Court has added some guidance on what a “genuine enjoyment” might be and when it might be compromised. In particular, it cannot be assumed that just because the other parent is able and willing to care for the child, the child can therefore be left in the country concerned and will not be “forced” to leave. This is very important.

The assessment of the question also has to include consideration of:

• Best interests of the child
• Age of the child
• Child’s physical and emotional development
• Extent of emotional ties to both parents
• Effect of separation from the 3rd country parent
• Other specific circumstances

The judgment very strongly suggests that where the Union citizen parent is not able or willing to look after the child, it is highly unlikely to be permissible to find that the child can live with that parent instead.

This marks a significant development of the case law on Zambrano rights and strongly suggests that ther UK has not been following the correct approach so far, an issue to which I return below.

Who proves what?

The Court also goes on to address who has to prove what. The Court finds that a Member State can require the applicant to furnish proof that the child would be deprived of his or her “genuine enjoyment” of Treaty rights but ends by saying that the Member State has a duty to undertake enquiries:

It is however for the competent authorities of the Member State concerned to undertake, on the basis of the evidence provided by the third-country national, the necessary enquiries in order to be able to assess, in the light of all the specific circumstances, whether a refusal would have such consequences.

This is because the burden of proof must not undermine the effectiveness of Article 20 TFEU.

Implications for the UK

The current Home Office approach is set out in the Immigration (European Economic Area) Regulations 2016 at regulation 16 and Home Office policy guidance on derived rights.

The Home Office guidance on Derived rights of residence (version 3.0, 11 April 2017) states that even where a parent is unwilling to care for a child, the test is not met (p53):

A lack of financial resources or a lack of willingness to assume caring responsibilities would not, by itself, be a sufficient basis for a person to claim they are unable to care for the relevant person.

Chavez-Vilchez very much suggests that this is the wrong approach and imposes too high a test.

In the case of Harrison (Jamaica) v Secretary of State for the Home Department [2012] EWCA Civ 1736 the Court of Appeal took a similar line to the Home Office, declining to accept that Zambrano rights might extend beyond a situation where a child was forced to leave the EU:

If the EU citizen, be it child or wife, would not in practice be compelled to leave the country if the non-EU family member were to be refused the right of residence, there is in my view nothing in these authorities to suggest that EU law is engaged. Article 8 Convention rights may then come into the picture to protect family life as the Court recognised in Dereci, but that is an entirely distinct area of protection.

Domestic UK case law too will have to be revisited.

The future for Zambrano carers and children

The future looks very uncertain for Zambrano carers and their children in the UK. The Zambrano right of residence is derived from a British child’s citizenship of the European Union. That citizenship will end when the UK leave the EU, which will entirely remove the logical and legal basis for the right of residence of the primary carer parent.

The Home Office seems unlikely to allow anyone to stay in the UK who does not have cast iron and legally guaranteed and enforceable rights. The EU Commission does not appear to be lobbying for continued post-Brexit rights for Zambrano carers; why should they, given that Zambrano carers are third country nationals and their rights derive from British children which will be entirely outside the purview of the Commission after Brexit?

There is an argument that British citizens remain Union citizens until Brexit and the Commission should be doing everything in its power to promote and safeguard their long term interests until then. Sadly, this seems politically unrealistic to me.