In what I would term as a legal goldmine for parents/couples with British/EU children stuck abroad due to the very strict Immigration rules the Upper Tribunal recently delivered a ruling that has extended the Principle in Zambrano to people with British/EU children abroad. If you are a couple with a EU/British child and one is stuck abroad or you are both stuck abroad with no chance of coming back with your children under the recently changed rules then listen closely!
What is Zambrano?
To understand the significance of this ruling one needs to understand Zambrano v ONE m Case C-34/0 in which the European Court of Justice held that where the parents of a child who is a national of a Member State, had not leave to residence in that member state (e.g. are there illegally or the 3rd party marriage has broken down with the British national and are now a single mum with a British child), such parents must be granted the right to work and the right of residence in that Member State as this is essential in order to protect the right of the child to live in Europe.
This decision concerned Colombian national parents living in Belgium, whose children were nationals of Belgium. Mr Zambrano lost his employment, which he had been doing illegally – without the required work permit.After being refused unemployment benefits, Mr Zambrano sought to argue before the Belgium courts that articles 20 and 21 TFEU required Belgium as a member state to grant him, as an ascendant relative upon whom minor children who were EU citizens depended, an exemption from the obligation to hold a work permit. He won!
The Grand Chamber of the European Court, held that
” citizenship of the European Union is intended to be the fundamental status of nationals of member states…
In those circumstances, article 20 TFEU precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of their rights conferred by virtue of their status as citizens of the Union…
43. A refusal to grant a right of residence to a third country national with dependent minor children in the member state where those children are nationals and reside, and also a refusal to grant such a person a work permit, has such an effect.
44. It must be assumed that such a refusal would lead to a situation where those children, citizens of the Union, would have to leave the territory of the Union in order to accompany their parents. Similarly, if a work permit were not granted to such a person, he would risk not having sufficient resources to provide for himself and his family, which would result in the children, citizens of the Union, having to leave the territory of the Union. In those circumstances, those citizens of the Union would, as a result, be unable to exercise the substance of the rights conferred on them by virtue of their status as citizens of the Union.”
This case is indeed significant and the UKBA has now, in addition to looking at a child’s best interest under s55 of The Borders, Citizenship and Immigration Act 2009, also to consider whether the removal or refusal of a parent of a British/EU national currently in the UK would necessarily mean that child would have to leave the EU. If this is the case they would have have to grant leave to avoid this happening.
Paragraphs 2 and 3 of the Schedule to the Regulations of The Immigration (European Economic Area) (Amendment) (No.2) Regulations 2012 (SI 2012/2560), brought into force on 8 November 2012 give effect to the CJEU’s decision in Zambrano by amending regulations 11 and 15A of the Immigration (European Economic Area) Regulations 2006 in order to confer rights of entry and residence on the primary carer of a British citizen who is joining the British citizen in, oraccompanying the British citizen to [regulations 11(5)(e) and 15A(4A)], the United Kingdom and where the denial of such a right of residence would prevent the British citizen from being able to reside in the United Kingdom or in an EEA State.
Rights of an EU Child or Adult Citizen
EU nationality (British nationality) confers special rights under Article 20 of the Treaty on the Functioning of the European Union (“TFEU”) which provides that every national of a Member State shall be a citizen of the EU, and shall have the right to move and reside freely within the territory of the member states.
Significance of this case
This case is significant because the case has so far only been used for children already in the UK, where one argues that to deny the parent a visa would deny such children their various rights under EU as they would have to move out of the EU with their non-EU parent/s. However, this ruling extended this principle to children outside the EU. Say for example expatriates who are stuck abroad with British Children. In a summary the court held
“in EU law terms there is no reason why the decision in Zambrano could not in principle be relied upon by the parent, or other primary carer, of a minor EU national living outside the EU as long as it is the intention of the parent, or primary carer, to accompany the EU national child to his/her country of nationality, in the instant appeals that being the United Kingdom. To conclude otherwise would deny access, without justification, to a whole class of EU citizens to rights they are entitled to by virtue of their citizenship.”
This ruling means that even where such an EU/British child has never lived in the United Kingdom, their primary carer e.g. mum or parents, can successfully argue that denying them entry clearance / a visa would deny the EU children the right to reside in the EU. As the court held; when balancing the rights of the public vs the individual rights of the children and parents:
“the position is a plain one. If the scales tip in favour of the ECO [entry clearance officer], it will have the effect of separating a mother from her two children one of whom for which she has been the principal carer and the other who has suffered as the result of their separation”
This is a case I would say of great importance, of similar status to MM and other cases if not more. In the right hands and with proper legal representation to put forward your arguments before a judge, anyone stuck abroad with a British child should be able to secure a visa to the UK provided they are the primary carers.
I am very excited about this case and I can’t wait for my next appeal involving a British child stuck abroad with their non-EU parent or parents.
If you have been affected by the recent immigration rules, need advice on any immigration matter, need to do an appeal, or are stuck abroad with an British/EU child or just evaluating your option then just give me a call and claim you FREE initial uo to 30mins no obligation consultation with a specialist Solicitor.
Your comments, likes and questions about this article are welcomed .