One day, some day, the Immigration (European Economic Area) Regulations 2006 will finally be amended to reflect the UK Border Agency understanding of Zambrano. Until then we will all continue to struggle both on a practical and conceptual level.

Zambrano rules that third country nationals can derive a right of residence from a Union citizen’s Article 20/21 TFEU rights where expulsion of the third country national, denying the third country national a right of residence or right to work:

(i)        would have the effect of depriving the Union citizen of the genuine enjoyment of the substance of the rights associated with their status as a Union citizen: or

(ii)       would impede the exercise of the Union citizen’s right to move freely and reside freely within the territory of the Members states.

This looks broadly applicable, so can it therefore be said to be correct to say, as the CJEU did in Dereci v. Austria (Case C-256/11), that Zambrano-type situations can be found to exist only exceptionally (so as to permit governments to legitimately limit scope)?

The answer can be found in two decided cases and a new Advocate General’s opinion.

Dereci

Dereci involved five applicants, all third country nationals who wished to remain in Austria with their Austrian-citizen family members.  None of the Austrian citizens had exercised their free movement rights.   All five applicants had had their applications for residence cards rejected by the Austrian authorities, which had refused to apply European law to their circumstances on the basis that the free movement provisions did not apply and had also rejected their Article 8 ECHR claims.    The following questions were referred to the CJEU:

(1)       Is Article 20 TFEU to be interpreted as precluding a Member State from   refusing to grant residence to a third country national, whose spouse/parent is a Union citizen, who is a national of and has always  resided in that Member State, even when those Union citizens are not dependent on the third country national for their subsistence?

(2)       If the answer to question (1) is yes:  Does the obligation on the Members States under Article 20 to grant residence to the third country nationals  relate to a right of residence which follows directly from EU law, or is it  sufficient that the Member State grants the right of residence on the basis of its domestic law establishing such a right?

(3)       (a) If the right stems from EU law:  under what conditions, exceptionally,  does the right of residence which follows from EU law not exist, or under what conditions may the third country national be deprived of the right of  residence?

(b)  If it is sufficient for the right to be granted following domestic law:  under what conditions may the national of a non-member country to be denied the right of residence, notwithstanding an obligation in principle on the Member State to enable that person to acquire residence?

(4)       This last question related to the application of the Ankara Association    Agreement Decisions and Protocols in the case of Mr Dereci, who is a Turkish national.

Consistently with Zambrano and McCarthy (see below), the CJEU first finds that Directive 2004/38 (free movement and residence rights) does not apply to any of the situations in Dereci as the Austrian nationals had always resided in Austria.

Then the CJEU then considered Article 20 TFEU and held as follows:

• Union citizens may therefore rely on rights pertaining to that status, including against their Member State of origin.

• As held in Zambrano, Article 20 precludes national measures which have the effect of depriving Union citizens of the genuine enjoyment of the substance of the rights conferred by virtue of that status.

• According to the CJEU, the criterion relating to the denial of the genuine enjoyment of the substance of such rights refers to situations in which the Union citizen has, in fact, to leave not only the territory of the Member State of which he is a national but also the territory of the Union as a whole (Emphasis our  own).

• The Court does not define this ‘criterion’ further other than to set out that it “is specific in character in as much as it relates to situations in which … a right of residence may not, exceptionally, be refused to a third country national … as the effectiveness of Union citizenship enjoyed by the Union citizen would otherwise be undermined” (Emphasis our own).

• The Court adds that ‘..the mere fact that it might appear desirable to a Union citizen, for economic reasons or in order to keep his family together in the territory of the Union, (or for his third country national family member to join him in the territory of the Union), is not sufficient to support the view that the Union citizen will be forced to leave Union territory if such a right is not granted’.

• The above is without prejudice to the right to the protection of family life, (either under Article 8 ECHR or Article 7 of the Charter of Fundamental Rights of the European Union) which may mean that a right of residence cannot be refused in any event.

The Court’s answer to the first question is that Article 20 does not preclude a Member State from refusing to allow a third country national family member of a Union citizen, who has never exercised free movement rights to reside on its territory, as long as such a refusal does not lead, for the Union citizen concerned, to the denial of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a Union citizen.  Whether it leads to such a denial is a matter for the referring court to assess.  The second and third questions were not answered as they had only been put in the event that the first  was answered with a  ‘yes’ and the fourth, involving  the Ankara Agreement, was referred back to  the Austrian court.

McCarthy

In McCarthy v United Kingdom (Case C-434/09) (decided before Dereci), Mrs McCarthy was a British citizen who married a foreign national with no immigration status. She was not a ‘worker’ and she had never exercised her free movement rights to reside in another EEA state. Mrs McCarthy had Irish heritage and applied for and received recognition as an Irish citizen. The Court held that in this case the refusal to grant residence to Mr McCarthy did not have the effect of depriving Mrs McCarthy of the genuine enjoyment of the substance of the rights conferred by virtue of her status as a Union citizen. The Court does not really explain why there is no genuine interference, though.   It was at least arguable that Mrs McCarthy was going to have to leave the UK in order to reside with her husband, and that this was comparable to the effect on the Zambrano children.

Advocate General’s Opinion in Iida

Advocate General Trstenjak handed down his Opinion in Yoshikazu Iida v. Stadt Ulm (C-40/11) on 15 May 2012.   Iida was a Japanese national, having previously lived in Germany with his German national wife and child.    Iida separated from his wife who took their child to live in Austria.    He continued to work in Germany but visited his child in Austria.    Iida asserted his right of residence in Germany on the basis of his child’s Article 20 EU rights and under free movement rights under Directive 2004/38.

The AG found in his interim conclusion that Directive 2004/38 would not found a right of residence where, as here, the EU citizen had moved to another Member State.

In considering Articles 20/21 TFEU, the AG considers:

i.          Right of residence of the third-country national who has custody rights in order effectively to guarantee the substance of the legal position of the Union citizen who is a minor and

ii.         Right of residence of a third country national in order to guarantee fundamental rights in an effective manner.

In answering (i) the AG whilst recognizing that Iida’s child’s rights conferred by EU citizenship would be ‘affected’ if her father was not granted a right of residence in Germany, the ‘..essence of the practical effect of the EU’s citizen’s legal position under Union law is not under threat in this specific case, it must for the moment be held, in accordance with [eg. Zambrano, Dereci] that EU citizen’s father does not have derived right of residence under EU law on the basis of his daughter’s EU citizenship.’, ie, she will not be forced to leave the territory of the EU.

In considering (ii), the AG quotes Dereci’s airing of this possibility

‘Thus, … if the referring court considers, in the light of the circumstances of the disputes in the main proceedings, that the situation of the applicants in the main proceedings is covered by European Union law, it must examine whether the refusal of their right of residence undermines the right to respect for private and family life provided for in Article 7 of the Charter. On the other hand, if it takes the view that that situation is not covered by European Union law, it must undertake that examination in the light of Article 8(1) of the ECHR.’

and stated

‘..it is not possible to dismiss out of hand the possibility that the father’s insecure future residence in Germany may potentially deter his minor daughter from further exercising her right of free movement as a Union citizen and consequently may constitute a restriction of that freedom, even though it does not amount to interference with the substance of the rights conferred by Union citizens’

and that

‘…fundamental rights would be applicable’

in the case where there would be a deterrent effect in denying him a right of residence under EU law.

The AG concludes this part of this Opinion is stating that a case such as this could lead to a right of residence on the basis of fundamental rights.

The UKBA’s current position

In a letter sent to ILPA on 31 May 2012, Jonathan Devereux, Head of European and Nationality Operational Policy set out the UKBA’s current standpoint. The letter is important and is available to ILPA members here.

Conclusion

Whilst it might be correct for the Dereci court to have said a right of residence on Zambrano-type facts may be ‘…found to exist only exceptionally’, the jurisprudence post-Zambrano permits arguments based on the assertion of the EU citizen’s fundamental rights, notwithstanding a refusal of a right of residence would not force the EU citizen to leave EU territory.

This arguably goes far beyond a situation involving children who cannot leave a Member State and would, for example, call into question the correctness of the UKBA’s policy, which states:

‘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’

An EU citizen’s fundamental rights must be said to be infringed if a third country national parent is not granted a right of residence, despite the EU citizen not being forced to leave the EU as another parent with the right of residence is available and able to meet the child’s needs.   It is notable that this particular section of the policy was not repeated in Jonathan Devereux’s letter to ILPA.   

(Think, for example, of where a third country national father who is not able to work and is the primary carer of a British child whose British mother is working and the sole source of the family’s income).

Further, the EEA family permit issue is interesting given that whilst the UKBA say that there is ‘..no current provision’ for entry under Zambrano, this is a without more a meaningless statement and it cannot act as a barrier to admission if the Zambrano criteria are fulfilled.

Given the government’s plans to limit rights for families under the Immigration Rules and Article 8 generally, familiarity with the EU jurisprudence on families and dependents is now essential.