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Zambrano (sort of) incorporated into regulations at last


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The Immigration (European Economic Area) (Amendment) (No. 2) Regulations 2012 (SI 2012/2560) come into force on 8 November 2012. There are two bits of good news for applicants and one piece of bad news. For previous news, updates and commentary on Zambrano and developments since that case see the EU citizenship blog topic.

The main criteria for the UK Border Agency interpretation of Zambrano are inserted at paragraph 15A, new sub paragraph (4A) and are as follows:

(a) The applicant must be the primary carer of a British citizen

(b) That British citizen must be residing in the United Kingdom; and

(c) That British citizen would be unable to reside in the UK or in another EEA State if the applicant were required to leave.

This actually seems like a fair stab at implementing Zambrano and the various follow up cases and is less prescriptive than the previous UK Border Agency policy. It also finally allows these issues to be properly tested in the immigration tribunal. I am therefore classifying this as good news.

Many people have made Zambrano applications in the last year and a half. Where those applications were accepted as ‘valid’ but not decided, we can now expect decisions to start trickling through. Where the application was rejected as ‘invalid’, a matter of some controversy, a fresh application can now be made to enable judicial consideration of whether the criteria are satisfied.

The new amended regulations also make two other changes worth mentioning. Firstly, the requirement in the 2006 regulations in respect of extended family members that the applicant resided in another EEA state has finally been dropped. This is again good news. Secondly, the right of appeal is drastically curtailed for those asserting a durable relationship. Very strangely, where a person cannot produce ‘sufficient evidence to satisfy the Secretary of State that he is in a relationship with that EEA national’ then there is no longer a right of appeal to the tribunal to prove that relationship. This attempt to limit rights of appeal according to an evidential assessment by one of the parties to that appeal seems very odd indeed and may well be susceptible to a lawfulness challenge.

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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.


4 Responses

  1. But the day before the EEA amendment regs were published, amendments to the housing and means tested eligibility regs were published, (unhelpfully referring to the as yet unavailable EEA amendment regs) EXCLUDING people with the new right to reside from eligibility for benefits, homelessness assistance or housing allocation. So the newly rightful residents, presumably mostly single parents are expected to support themselves and the British citizen child by working in a job that pays enough to pay childcare costs and rent (something that eludes a lot of other single parents). Or? off to social services to gret help from S17, since clearly now have an EEA right to reside and so not excluded by schedule 3. Don’t expect the duty social worker to be happy.

  2. “Very strangely, where a person cannot produce ‘sufficient evidence to satisfy the Secretary of State that he is in a relationship with that EEA national’ then there is no longer a right of appeal to the tribunal to prove that relationship.”

    Where there would be a right of appeal under the national rules (say an applicant with PBS leave and British partner seeking to switch), there logically must be one for partners of EEA nationals otherwise EEA nationals are put in a worse position than British citizens.
    Could this perhaps be grounds for JR?

    I suspect the courts, possibly the ECJ, will in time be considering the question of PR too.

  3. “(a) The applicant must be the primary carer” – or carers. UKBA has dropped its term ‘sole carer’.

    “(b) That British citizen must be residing in the UK” – in country apps of course, but it will need to make future provision for entry clearance aswell.

    “(c) That British citizen would be unable to reside in the UK or in another EEA State” – Obviously subjective and covers a whole range of possibilities, and leaves UKBA enough ‘wiggle room’ to justify refusals.

    A fairly good W.I.P. (by UKBAs usual standards) of Zambrano. The appeals and judicial reveiws will make interesting reading especially for (c), and the legal developments will make less depressing reading than most of the other recent immigration rule changes for sure.

    Just one Q. Does it lead to PR?

  4. and also very importantly in the Schedule to the regulations it
    extends the right of admission to accompany to, as well as join a British Citizen

    Regulation 11 (right of admission to the United Kingdom)
    2. In regulation 11—
    (a) at the end of paragraph (5)(c)(ii) for “United Kingdom.” substitute “United Kingdom;”;
    (b) at the end of paragraph (5)(d)(ii) for “person there.” substitute “person there; or” and then
    “(e) P is accompanying a British citizen to, or joining a British citizen in, the United
    Kingdom and P would be entitled to reside in the United Kingdom pursuant to
    regulation 15A(4A) were P and the British citizen both in the United Kingdom.”;