Zambrano and McCarthy - what are their effects?
The European Court of Justice has in the last couple of months made two decisions which may carry real benefit for many non-EU nationals resident in the United Kingdom and other Member States of the European Union.
The judgment of the court's Grand Chamber in Zambrano v Office national de l'Emploi (C-34/09) concerns the right of Colombian citizens, Gerard Ruiz Zambrano and his wife, to reside in Belgium on account of the Belgian nationality of their two younger children. Their son Diego and daughter Jessica were born in Belgium in 2003 while their parents resided there after being granted a form of humanitarian protection. Both children acquired Belgian nationality because they would otherwise have been stateless. Their father obtained employment, but he and his wife subsequently lost their protective status in Belgium, and Mr Zambrano was prevented from working. His claim for unemployment benefits was rejected, and his appeal against that decision led to this referral to the ECJ.
The referring court asked "whether the provisions of Articles 12, 17 & 18 of the Rome Treaty on the Functioning of the European Union are to be interpreted as meaning that they confer on a relative in the ascending line who is a third country national, upon whom his minor children, who are EU citizens, are dependent, a right of residence in the Member State of which they are nationals and in which they reside, and also exempt that relative from having to obtain a separate work permit in that Member State.". It also asked whether these Articles apply even when the EU child hasn't exercised their right to move freely within the borders of the EU.
The ECJ's earlier decision in Zhu & Chen (C-200/2) was a significant step forward in European free movement law . In Zambrano, Chen was affirmed, and the court went further still in asserting the rights of children who are EU nationals by birth. A large number of Member States - not including the UK, unusually - argued that a family like the Zambranos, which had not moved across EU borders, could not benefit from the provisions of the Rome Treaty. Relying on Article 20 of that Treaty - which provides that EU citizens have the right to move and reside freely within the territory of Member States - the ECJ found that national measures which deprive such citizens of the genuine enjoyment of the substance of these rights were unlawful. Here, refusal to grant a right of residence to Mr and Mrs Zambrano, and to refuse Mr Zambrano permission to work, had such an effect.
The decision appears to open the way for non-EU nationals residing in the UK who have a British citizen child to apply to regularise their stay here. It also takes away one of the major difficulties of the Chen judgment: the fact that non-EU parents were required to be self-sufficient, and therefore prevented from working in the Member State where they lived.
However, this broad interpretation of Article 20 of the Rome Treaty was almost immediately reconsidered by the Third Chamber of the ECJ in McCarthy v SSHD, case C-434/09. Shirley McCarthy, a dual British and Irish citizen, was born and had always lived in Northern Ireland, which is part of the United Kingdom. She had never worked, and received state benefits. In 2002 she married a Jamaican citizen who had no valid leave to remain in the UK. Following her marriage, she acquired an Irish passport for the first time, and sought to assert her own rights of free movement within the EU, as well as those of her husband. The referring court - the House of Lords, now the Supreme Court - asked whether a dual Irish / British citizen who had lived in the UK all her life could be a "beneficiary" under Article 3 of European Council & Parliament Directive 2004/38, and whether she had therefore "resided legally" within the host Member State, the UK, under Article 16 of that Directive.
The ECJ found that Mrs McCarthy was not a "beneficiary" under Article 3 of the Directive because she had never moved to another Member State Her husband could not therefore derive similar rights The ECJ went on to ask itself a further question, referring to Article 21 of the Rome Treaty which enshrines the fundamental right of freedom of movement of EU citizens across Member States. The court also referred to Article 20 and the decision of the Grand Chamber in Zambrano, but distinguished it, finding that no element of Mrs McCarthy's situation, as described by the national court, indicated that the national measure taken against her had the effect of depriving her of the genuine enjoyment of the substance of her EU rights. Essentially, she was an adult, and denial of access to her EU rights did not have the same effect as a similar measure did on the Zambrano children. The national decision did not "oblige her to leave the territory of the EU", as a negative decision would have done in Zambrano.
So how comfortably do these cases sit together? As a Grand Chamber judgment, Zambrano carries more weight. But McCarthy considered Zambrano, and rejected its central point in the case of an adult seeking to assert free movement rights to help her third country national husband. I believe the two cases can co-exist comfortably, with Zambrano carrying forward yet further the potential for arguing free movement provisions involving children, which under EU legislation is anyone under the age of 21.