Zambrano Judgment Finally Incorporated into Immigration (EEA) Regulations
It is 20 months since the Court of Justice of the European Union issued its judgement in the case of Ruiz Zambrano. At the heart of that judgment was the principle that:
"45...Article 20 TFEU [Treaty on the Functioning of the European Union] is to be interpreted as meaning that it precludes a Member State from refusing a third country national upon whom his minor children, who are European Union citizens, are dependent, a right of residence in the Member State..."
Finally the UK has laid before parliament its Immigration (EEA) Amendment (No 2) Regulations 2012. The Regulations come into force on 8 November 2012. The purpose of the amendments, according to their Explanatory Note is, among other things, to give effect to the Zambrano judgment:
"by amending regulations 11 and 15A of the 2006 Regulations in order to confer rights of entry and residence on the primary carer of a British citizen who is residing in 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."
15A is the central Regulation. It was inserted into the Regulations barely three months ago to create the category – hitherto unknown to EU law - of a ‘derivative right of residence.’ The Explanatory Note of the Amendment Regulations 2012 (No 1) told us that this derivative right of residence was created in order to give effect to the judgments of the CJEU in the cases of Chen , Ibrahim  and Teixera . Now, in order to give effect to Zambrano, the derivative right of residence is acquired by a person defined in Regulation 15A(4A) as ‘the primary carer of a British citizen’ where ‘the relevant British citizen is residing in the United Kingdom’ and ‘would be unable to reside in the UK or in another EEA State if [the person] were required to leave.’ Regulation 15A(7) defines a ‘primary carer’ as ‘a direct relative or a legal guardian’ of the British Citizen, where the carer ‘has primary responsibility’ for the British Citizen’s care or ‘shares equally the responsibility’ for the British Citizen’s care with another person who does not have any right to reside under the Regulations nor any leave to enter or remain.
The amended Regulations replace the former ‘sole carers policy’ which was published in September 2011 by UKBA as an interim holding position while it worked out how to amend the Regulations. The former policy envisaged only two classes of beneficiary from the Zambrano ruling:
A third country national adult upon whom a British citizen child is dependent
A third country national adult upon whom a British citizen adult is dependent
The policy also deliberately excluded cases where a child had a British or settled parent:
"10. 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."
Some commentators have seen the newly amended regulations as offering a less prescriptive approach than the previous UKBA policy, but there appears to be substantial continuity of interpretation between the previous policy and the new Regulations.
A further significant restriction is that under Regulation 15(1A) periods where a person acquires a derivative right of residence under the Regulations will not count towards the acquisition of a right to reside permanently in the UK. That contrasts with free movement rights where exercising a right of residence can result after 5 years in a right of permanent residence. In other words, the ‘derivative’ right which has been created is a second class right. No matter how long a ‘Zambrano carer’ possesses a derivative right of residence, that person can never settle in the member state. Logically, once the dependent child ceases to be a child or the dependent adult ceases to be dependent, even the derivative right of residence lapses.
It is also worth noting that at the same time as giving effect to Zambrano via the creation of a derivative right of residence, the UK government has also amended the relevant social security, housing and homelessness regulations with the effect that a person with a derivative right of residence under 15A(4A) – a ‘Zambrano carer’ – will be excluded from housing assistance and welfare benefits, presumably being forced to turn to local authority social services departments to meet any needs under the Community Care and Children’s Acts.
Perhaps predictably, the approach of the UK is to narrow the scope of potential beneficiaries from the Zambrano judgment as far as possible; define them as a ‘person from abroad’ ineligible for mainstream social assistance and prevent them from acquiring a right to settlement. In this sense, the drafting of the amendment Regulations tracks the recent changes in the immigration rules whereby recourse to public funds is intended to be denied to those who benefit exceptionally under Appendix FM, paragraph EX.1 and family members must have had leave for 5 years before they can apply to settle – 10 years for those granted leave under exception EX.1.
The UK’s approach might be considered objectionable on various grounds – impracticality, immorality, vindictiveness for starters – but is it legally defensible? On the one hand, the problem with the UK’s approach to implementing the Chen, Ibrahim and Teixeira judgments in its national Regulations has been well described by Adam Weiss, Legal Director of the AIRE Centre. It is not just the delay in giving effect to the CJEU judgments:
"The second problem is how the Regulations reflect the case law. The Court of Justice – broadly applying provisions of EU law designed to encourage the free movement of persons and to protect the rights of EU citizens – has found in these judgments that EEA nationals and their family members have rights to reside in the UK in circumstances the UK authorities did not anticipate."
The UK authorities’ response was to grant rights only to people whose lives track the facts of these cases as closely as possible, and not to anyone else. This conservative approach undermines the spirit of what EU law requires: a flexible approach to recognising the residence rights of EU migrants in unexpected situations where EU-law citizenship and free-movement rights are engaged. Giving the authorities broader discretion would have been better. The UK's case-by-case approach will inevitably lead to people who have rights under EU law being refused recognition of those rights.
It is inevitable that many of the restrictions in the amended Regulations will be the subject of legal challenge. However, in seeking to challenge the narrowness of the way in which Zambrano has been given effect, those who favour a broader interpretation face a real underlying difficulty. The CJEU judgments which followed Zambrano, in particular McCarthy  and Dereci  and the more promising opinion in Iida  were, at best, opaque in their reasoning and at worst, went a long way toward closing the door which the Zambrano judgment had opened – or at least transformed what could have been the broad thoroughfare of EU citizenship into the narrow passageway of ‘primary carers of British Citizens’. For now, authority can be found in the case law to support a more restrictive national approach to Zambrano, though not for all of the restrictions the UK seeks to implement through the Regulations.
The most significant judgment so far in the UK has been Sanade . President Blake’s Tribunal was dealing with deportation cases under s32 of the UK Borders Act 2007 and framed the question in the context of Article 8 of the European Convention on Human Rights. On the one hand, the CJEU judgments are interpreted like this:
"Where in the context of Article 8 one parent (“the remaining parent”) of a British citizen child is also a British citizen (or cannot be removed as a family member or in their own right), the removal of the other parent does not mean that either the child or the remaining parent will be required to leave, thereby infringing the Zambrano principle, see C-256/11 Murat Dereci, BAILII:  EUECJ C-256/11. The critical question is whether the child is dependent on the parent being removed for the exercise of his Union right of residence and whether removal of that parent will deprive the child of the effective exercise of residence in the United Kingdom or elsewhere in the Union. [Headnote 6]"
However, the Tribunal also endorsed a concession by the Secretary of State which has had far- reaching consequences for the application of Article 8 ECHR to cases involving British Citizen family members:
"Case C-34/09 Ruiz Zambrano , BAILII:  EUECJ C-34/09, now makes it clear that where the child or indeed the remaining spouse is a British citizen and therefore a citizen of the European Union, as a matter of EU law it is not possible to require the family as a unit to relocate outside of the European Union or for the Secretary of State to submit that it would be reasonable for them to do so. [Headnote 5]"
It is clear that this aspect of the Zambrano judgment has informed the drafting of exception EX.1 in the immigration rules, albeit within the deeply flawed framework of UKBA’s attempt to predetermine and codify the circumstances under which Article 8 will be breached. That is made clear in the Immigration Directorate Instruction Chapter 8 ‘Guidance on application of EX1 – consideration of a child’s best interests under Appendix FM (family rules)’ where Zambrano is specifically referenced (paragraph 7) to inform the guidance that:
"11. In cases where the decision being taken in respect of the person with parental responsibility would require that person to return to a country outside of the EU then the case must always be assessed on the basis that it would be unreasonable for the child to leave the UK with their parent. In such cases it will usually be the case that the person with parental responsibility will be allowed to stay in the UK with the child provided that there is satisfactory evidence of a genuine and subsisting relationship."
What is to be done?
The obvious question, then, is whether it is still worth making Zambrano applications under the EEA Regulations. One obvious advantage is that no fee is incurred and for those who can realistically argue they meet the definition in the Regulations, this advantage may be sufficient. However, in more complex cases, it is clear that the UKBA department dealing with such applications will simply apply the Regulations and is extremely unlikely to even consider arguments based on an alternative interpretation of EU law. It is not uncommon even for Article 8 ECHR grounds to be ignored. This might matter less if there was a clear right of appeal to the First tier Tribunal where full legal argument could take place. However, amendments to the appeal provisions of the Regulations now provide under Regulation 26 (3A) (v) that where a derivative right of residence is claimed, proof must be provided that the person is ‘a direct relative or guardian of a British Citizen.’ It is entirely predictable that UKBA will assert that for those not falling into this category, there is no right of appeal despite the UK having chosen the Regulations as the appropriate instrument to incorporate EU Citizenship rights into UK law.
Rather less predictable is how the First tier Tribunal would respond to a Notice of Appeal asserting jurisdiction to determine a right arising from EU Citizenship and relying on relevant statutory provisions in the European Communities Act 1972 and the Nationality, Immigration and Asylum Act 2002 under which the Regulations are made. Also of potential relevance is Article 47 the Charter of Fundamental Rights of the EU which provides a right to an effective remedy and to a fair trial:
Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.
Judges of the First tier Tribunal have taken opposing views on whether they have jurisdiction to hear an appeal against the refusal of a Zambrano application and the Upper Tribunal has yet to report any decision on what may now become a more pressing matter as decisions on the stalled Zambrano applications start to trickle through. Reliance on relevant statutes and the EU Charter has arisen because of the restrictive approach in the Regulations to appeal provisions. It also derives from the construction of Section 82(1) of the 2002 Act which has the effect that for anyone without leave whose application under the immigration rules is refused but who is not served with a removal decision, no right of appeal to a Tribunal arises, leaving only judicial review as a remedy.
Nonetheless, the publication of the Amendment Regulations puts the UK’s considered position on the table. Lawyers can advise about the potential applications available to clients and prepare for the challenges to come – with relish.
26 October 2012