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New Upper Tribunal decision on Zambrano carers


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Official headnote from Ayinde and Thinjom (Carers – Reg.15A – Zambrano) [2015] UKUT 560 (IAC):

(i) The deprivation of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizens identified in the decision in Zambrano [2011] EUECJ C-34/09 is limited to safeguarding a British citizen’s EU rights as defined in Article 20.

(ii) The provisions of reg. 15A of the Immigration (European Economic Area) Regulations 2006 as amended apply when the effect of removal of the carer of a British citizen renders the British citizen no longer able to reside in the United Kingdom or in another EEA state. This requires the carer to establish as a fact that the British citizen will be forced to leave the territory of the Union.

(iii) The requirement is not met by an assumption that the citizen will leave and does not involve a consideration of whether it would be reasonable for the carer to leave the United Kingdom. A comparison of the British citizen’s standard of living or care if the appellant remains or departs is material only in the context of whether the British citizen will leave the United Kingdom.

(iv) The Tribunal is required to examine critically a claim that a British citizen will leave the Union if the benefits he currently receives by remaining in the United Kingdom are unlikely to be matched in the country in which he claims he will be forced to settle.

Bit difficult to see how this squares with Sanneh & Ors v Secretary of State for Work and Pensions and Others [2015] EWCA Civ 49 (Free Movement write up by Desmond Rutledge: New Zambrano case: Good news and bad news for Zambrano carers). Upper Tribunal Judge Jordan does not refer anywhere to the Court of Appeal judgment in Sanneh, only to the High Court decision, which seems odd considering it was handed down before the hearing in this case.

It is also a little unfortunate the headnote states that Zambrano rights are restricted to the carers of British citizens as current law suggests the right can extend to carers of EU citizens if the EU citizen would be forced to leave the EU. Whoever is doing these headnotes is consistently getting them wrong.

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Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.