Zambrano – the Home Office shows its hand, by Ed Mynott

19-09-2011

On 16 September 2011, six months after the Court of Justice of the European Union issued its groundbreaking decision in Ruiz Zambrano, the UK Border Agency has finally publicised its agreed 'high level position' in a letter to the Immigration Law Practitioners Association. The policy is intended to appear now on UKBA's website.

UKBA recognises that 'this judgment determined that national measures which have the effect of depriving a Union citizen of the genuine enjoyment of the substance of his or her rights as a Union citizen are precluded.' Yet for the past six months those applying to UKBA on the sole basis of the Zambrano judgement were having their applications returned as invalid. The stated justification was that there was no provision to issue documentation under the Immigration (EEA) Regulations 2006. This was unsurprising as the Regulations were intended to give effect to free movement rights for European Economic Area nationals and their family members, whereas the CJEU in Zambrano founded its decision on EU citizenship which the Court reminded us 'is intended to be the fundamental status of nationals of the Member States.' Nonetheless UKBA's initial response was transparently a holding one because the UK must give effect to EU law.

Now UKBA has disclosed in broad terms its understanding of the Court's judgement and crucially has provided a mechanism by which those who believe they benefit from the Zambrano ruling can make an application to UKBA to have their rights under EU law documented. First of all, the legal interpretation:

What UKBA thinks Zambrano means

At the heart of UKBA's interpretation of Zambrano is the notion of dependency. As the letter to ILPA puts it:

The judgment applies only to cases in which the dependent Union citizen is within their state of nationality. For the United Kingdom, this means that the judgment applies only to cases involving dependent British citizens. Secondly, it has been agreed the judgment does not apply in cases where dependency is simply financial. There are, therefore, two classes of potential beneficiary:

  • 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 restriction to British Citizens is uncontroversial. That UKBA has alighted on the existence of dependency is to be expected. After all, the CJEU in Zambrano had said that

45...Article 20 TFEU 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...

Yet there was no further discussion in Zambrano about dependency and so we can only guess the basis for UKBA excluding 'simply financial' dependency. Interestingly, dependency under EU free movement law has always been approached differently than under UK immigration law. Whereas under the UK's Immigration Rules dependency must be of necessity and not of choice, under EU law dependency is a matter of fact.

But while UKBA has sought to take a restrictive approach with its exclusion of dependency which is simply financial it has explicitly, if only partially, opened up the prospect of dependency by a British adult on a third country national adult, resulting in that third country adult obtaining a right of residence and work as long as the dependency in question is not simply financial. This suggests, for example, that if a British husband were dependent on his non-EEA spouse in a way which went beyond simple financial dependence, the non-EEA spouse would acquire a right of residence.

It is debatable whether UKBA's concentration on dependence is correct, given that in Zambrano and in the Shirley McCarthy case which followed shortly afterwards, the Court of Justice put at the centre of its reasoning the question of whether an EU citizen was being deprived of the substance of his or her rights. Yet UKBA's position recognises that the principles established in Zambrano in respect of EU citizen children also apply to EU citizen adults (as the Court of Justice's decision in Shirley McCarthy made clear, even though it dismissed that appeal on other grounds) UKBA's policy therefore does not shut the door on adult family members of EU citizens asserting a right of residence and a right to work. Rather it opens up an opportunity for such family members. Eventually the Court of Justice of the EU will rule on the question of dependency which UKBA has put at the heart of its interpretation of Zambrano when it rules on the cases of Dereci et al. These cases were referred by several EU member states to the Court to address a number of scenarios, common to which were the lack of dependency by the EU citizens or where the third country national member was dependent on the EU citizen. Hence UKBA's statement in its letter to ILPA that 'our position may be impacted by further case law from the ECJ (notably the reference in Dereci)'.

It will be many months or even longer before the CJEU decision in Dereci et al will be issued. In the meantime UKBA has come up with a procedure to facilitate applications from those who assert that they benefit from the Zambrano judgement. What is it?

The application procedure

UKBA has drafted and issued guidance to all areas of the agency, according to its letter to ILPA, as well as communicating its position to the UKBA website – although nothing has appeared at the time of writing. UKBA has formulated its position pending changes to the Immigration (EEA) Regulations 2006. Once the changes have been implemented, applications will be considered under those Regulations but the changes are not expected to be completed until the end of 2011 at the earliest.

From today (19 September 2011) any person who believes they potentially meet the test set out in Zambrano can apply to the 'European Casework business' section within UKBA. There is no mention of any fee which would be consistent with the lack of any fee for other EU document applications. The letter to ILPA explains UKBA's approach:

In order to demonstrate that a person is the potential beneficiary of this judgment and be issued with a certificate of application, then the following evidence will be required from the applicant:

  • Evidence the dependent national is a British citizen, and
  • Evidence of relationship, and
  • Adequate evidence of dependency between the applicant and British citizen
  • Where UKBA believes that sufficient evidence has been supplied by the applicant, it will issue a 'Certificate of Application' which permits the applicant to work pending its substantive consideration of the application which will not take place until the Immigration (EEA) Regulations have been changed. The other significant consequence of UKBA accepting that an applicant potentially meets the Zambrano test is that any action to remove them from the UK will be suspended pending a substantive decision.

Conclusion

All of this leaves many questions open – in particular what kind of evidence UKBA will treat as establishing a potential case and whether further and more detailed evidence will be requested from an applicant to prove they meet the substantive test. All we can say is that cases of dependent children are likely to face less difficulty than dependent adults. The publication of the guidance itself, followed by actual decisions, should help make things clearer – not least for those who already have other kinds of applications pending with other departments of UKBA.

No doubt there will be legal challenges to any refusal to accept potential or substantive claims and lawyers will want to test whether either type of refusal constitutes a decision which attracts a right of appeal to the First tier Tribunal. Legal challenges will focus not only on the way in which UKBA has interpreted dependency but also on whether there are other means by which family members can demonstrate that a negative decision prevents the EU Citizen from genuinely enjoying the substance of their rights as an EU Citizen.

Nonetheless, UKBA has opened up the potential for fee-free applications to be made by adult family members of EU Citizens, not only parents. As predicted, the Court of Justice's ruling in Zambrano has opened up a new chapter for immigration law in the UK with new opportunities for family members of British Citizens to claim a right to live and work in the UK.