Details are slowly emerging of a recent ruling by judges at the Court of Justice of the European Union (ECJ) (above) that has left immigration ministers all over the EU having to order their rule books to be altered.
The case involves a Columbian national who remained in Belgium although ordered to be deported by the Belgian authorities. Because he and his (Columbian) wife had children whilst illegally in Belgium, the ECJ has ruled that he cannot now be deported.
By Charles Kelly
The UK Border Agency has issued a statement following the Court of Justice of the European Union (ECJ) ruling on Ruiz Zambrano:
The Court of Justice of the European Union (ECJ) recently handed down judgment in the case of Ruiz Zambrano (C-34/09). This judgement creates a right to reside and work for the sole carer of a dependent British citizen when that carer has no other right of residence in the UK and removing the carer from the UK would mean the British citizen would have to leave the European Union.
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Normally it is rulings by the Court of Human Rights that has government ministers in uproar; this time it is the little known ECJ that has thrown immigration officials into turmoil. Photo Credit: Cimmerian Praetor
The UK Border Agency has been considering the effect of this judgement and whether any changes are required to our policy or the law as a result. Until now, we have not accepted applications we have received on this basis as there is currently no provision within the Immigration (European Economic Area) Regulations 2006 (the regulations) to issue documentation on this basis.
We will amend the regulations in due course to enable a person to be issued with a document confirming that they have a right to live in the UK as a result of the Ruiz Zambrano judgement. However, in the meantime, we will issue a certificate of application to those who are able to show:
- evidence that the dependent national is a British citizen;
- evidence of the relationship between the applicant and the British citizen; and
- adequate evidence of dependency between the applicant and the British citizen.
This certificate will enable a person to work in the UK while their application is outstanding. Once changes to the regulations are made, the application will be given full consideration and documentation will be issued under the regulations to those who meet the final agreed policy.
Employers can accept this certificate of application, in combination with a positive verification from our Employer Checking Service, as proof of right to work in the UK for up to 12 months. This document combination comes under entry 5 of List B within the ‘Comprehensive guidance for employers on preventing illegal working', and will provide an employer with a statutory excuse against payment of a civil penalty for up to 12 months.
Further information on the scope and processes referred to can be obtained from the Customer Contact Centre on 0845 010 5200. Ends.
Source: UK Border Agency.
The UK based Joint Council for the Welfare of Immigrants) JCWI has released the following update on the Zambrano judgement.
As we keep getting Zambrano searches on our blog, we thought we'd do a quick update to our previous post given that we were awaiting some kind of response from the UK Border Agency at the time we last wrote about it.
Basically the UK Border Agency has confirmed in a letter to ILPA that it will be looking at putting regulations to reflect the Zambrano judgment in place ‘before the close of 2011 at the earliest'.
UKBA's understanding of the judgment
The UK Border Agency interprets the Zambrano judgment to apply to: a) third country nationals upon whom British children are dependent and b) third country nationals upon whom a British citizen adult is dependent. It takes the view that the judgment does not apply in cases where dependency is simply financial.
Arrangements for applications
From 19 September 2011 therefore, applications for Certificates of Applications will be granted where people can show that they potentially fall within the scope of Zambrano (as per above understanding) and are able to evidence this through documentation showing: a)that the dependent is a British citizen, b) the existence of a relationship and c) dependency. Once the relevant Regulations come into effect, applications will be considered substantively, and documentation will be issued according to those Regulations.
In removal cases those who potentially fall within the scope of Zambrano as per above understanding should have removal suspended pending a substantive decision on their case.
It may be that the above understanding ultimately changes. The Austrian courts have lodged a preliminary reference to the ECJ in Dereci and Others v Bundesministers fur Inneres .
They've basically asked whether Article 20 of TEFU prevents a member state from refusing residence where Union citizens are not dependent on the third country nationals for subsistence in a range of different circumstances, and in a range of different familial relationships.
The Austrian courts have also asked for clarification about the circumstances in which a third country national can be denied the right of residence in the above context. However, given that the reference is apparently not by way of accelerated procedure, we're not expecting to see this judgment for a few years yet. Source: JCWI
If you need any immigration advice or help with Sponsorship or Work Permits, Visa, ILR/Settlement, Citizenship, dependant visa or an appeal against a refusal please email:
firstname.lastname@example.org or visit http://www.immigrationmatters.co.uk/
A CLOSER LOOK AT THE ZAMBRANO CASE
Ruiz Zambrano v Belgium Case C-34/09
There have already been a number of helpful and detailed posts, notes and articles about the Zambrano case - this is why we've only briefly touched on this case in our recent article on ZH (Tanzania).
However, given that quite a few of you seem to be coming to this blog through search engines in pursuit of something about the case, we thought we'd do a little note for you with a view to explaining it in a bit more detail.
The Zambrano couple were Colombian nationals. Their applications for asylum were rejected and they were ordered to return to Colombia - the order however contained a non-refoulement clause. This stated that they should not actually be sent back to Colombia because of the civil war.
As the Zambrano couple had no status, Ruiz Zambrano sought to regularise their stay. Those applications were unsuccessful. Ruiz Zambrano had previously worked, but his employment contract was subsequently terminated - he was told he had no entitlement to work as he had no work permit. He was also subsequently refused unemployment benefit because of his irregular status.
The Zambrano couple had two children who were both born in Belgium, and had therefore acquired Belgian nationality. They had however never lived outside of Belgium and never exercised their freedom of movement. Ruiz Zambrano sought to rely on a derived right of residence as the ascendant of minor children who are nationals of a Member State according to the Zhu and Chen case.
The refusal to give a right of residence to a third country national (TCN) with dependent minor children in the Member State where those children are nationals, together with the refusal to grant a work permits to enable TCN parents to work to support children, has the effect of depriving citizens of the Union genuine enjoyment of their citizenship rights under Article 20 of TEFU.
In her explanatory note for ILPA professor Guild explains the position in the following terms.
‘The rights of Zambrano children who are EU citizens comes directly from Article 20 TEFU (citizenship of the Union); Those rights include:
- The right to live in Belgium (para 40 and 41)
- The right of residence for their third country parents (both of them it would seem) to live in Belgium with them as this is necessary for the children who are EU citizens to enjoy their rights as citizens of the Union (para 42 and 43)
- The right to a work permit for the third country national parents to support the children (as otherwise they might all have to leave the state on grounds of penuary) (para 44).'
This is a hugely significant judgment as it's saying that Citizens of the Union who can rely on Article 20 TEFU directly are not required to move, and are not subject to the limitations in Directive 2004/38/EC.
It is important to note however that the reach of this case extends only to those cases where the Citizens Directive 2004/38/EC is not applicable. Article 20 TEFU expressly limits its application to conditions in EC Treaties and secondary legislation. Accordingly, it would be inapplicable to Union Citizens who move and reside in another Member State.
Further, as Weisbrook suggests, there are some restrictions that apply to this sort of case. In particular, the Union Citizen must face a potential deprivation of ‘the genuine enjoyment of the substance of the rights' conferred by virtue of the Status of Union citizenship - in Zambrano the far reaching risk of removal from the territory easily fulfilled this requirement. Weisbrook however also observes that the Court appears to rely heavily of the fact that in order to enjoy their rights of citizenship the Zambrano children were dependent on the parent's right of residence and employment- this could constrain it's future development.
Even so, it is not difficult to see the potential scope for development in the future. As Guild points out, it could be extended to spouses - McCarthy which is pending before the ECJ will shed light on this. It could also potentially be extended to other family members and guardians in an identical situation. And, depending on how the potential limitations that unravel, it could also apply to family reunification cases.
It is also likely to have implications for deprivation of British citizenship cases themselves - not only in those cases in which there are British children involved -Kaur was concerned with the acquisition rather than deprivation of citizenship so the possibilites for the application of Community law are not at all foreclosed, and are enhanced by by this.
Finally, one imagines that if linked also with the Charter of Fundamental Rights, it can be expected to have implications for access to a range of social entitlements for families containing TCN members, if the effect of non-provision is to result in the constructive removal of the citizen of the Union.
The flip side of all of the above of course, is that both the UK Government and other European governments may well respond - particularly in the current climate - by tightening requirements for settlement and citizenship in order to minimise the potential effects of the judgment.
We're all presently waiting for some kind of response from the Government to Zambrano. Of course in the meantime, those parents/families who fall with the terms of the above judgment who have been removed/constructively removed e.g. through an absence of welfare/work entitlements, or refused residence should seek legal advice. Source JWCI
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