Zambrano Children – between the Rules and the Regulations

In the judgment of 8 March 2011 in the case of Zambrano v ONEm, C-34/09, the Court of Justice of the European Union ruled that the right of residence and the right to take up employment should be granted to the carer or carers of a British or EEA national child where refusal of such right would constructively lead to removal of the child from the European Union.

This judgment significantly extended the principle previously established in the case of Chen, C-200/02, which had confirmed the right of residence for parents of self-sufficient EU national children but having made no comment on the right to take up employment was interpreted very restrictively both by the UKBA and the courts.

Zambrano judgment appeared to resolve the immigration problems for migrants responsible for the carer of a British or an EEA national child conferring on them a derivative right of residence with an associated right to work.  The judgment did not open the way to the right to support from public funds, or the right to permanent residence, as would be the case for family members of EEA nationals exercising their free movement rights in Britain. Yet, the big step forward was the recognition of the right of carers to live and earn their living in the UK.

A few months later the effect of Zambrano was cooled down by further rulings from the Court of Justice. It was made clear that European Union law only engaged to prevent removal of an EU national from the European Union. Where the child could remain in the UK with one of the parents, free movement law would not engage, and the child’s need to have both parents would not be protected. (Dereci C-256/11)

This gap was helpfully filled by the developments in domestic law.  The decision of the Supreme Court in ZH (Tanzania) [2011] UKSC 4 emphasised the over-arching principle of giving best interests of the child primary consideration in decisions involving removal of one or both of the child’s parents. The rule is now codified under s. 55 of the Borders, Citizenship and Immigration Act 2009 and binds decision-makers in matters involving children.

Yet, codification of the residence rights of the parents or carers of the children who have the right of residence in the UK by virtue of their British or European nationality is split between two pieces of legislation, the immigration Rules and the Immigration (European Economic Area) Regulations 2006, both amended in 2012 so as to address this scenario.

The EEA Regulations were amended to include a new concept of “derivative right of residence” which is to be given to the parents and siblings of a self-sufficient EU national child (in legal jargon called the Chen child), to the children of EU citizens who had remained in the UK to continue their education after the departure of their EU national parent from Britain with analogous right given to the carer and siblings of such a child (Teixeira families following the judgment of CJEU in Ibrahim C-310/08 and Teixeira  C-480/08 CJEU). 

The Zambrano scenario was introduced into the  Regulations by an amendment effective from November 2012. The carer or carers of a British citizen child is entitled to a derived right of residence.

The Immigration Rules also provide for the rights of the carers of British citizen children under Appendix FM, section E-LTRPT: Eligibility to limited leave to remain as a parent. The provisions take a rather unexpected angle: to qualify under this rule the parent either has to be a single parent with the sole responsibility for the child, or be the non-resident parent with a right of access to the child and not be the partner of the other parent if the other parent has a right to reside in the UK.

Where the parents are together and one of the parents has the right of residence in the UK, the rules require that any application for leave to remain should be made on the basis of the relationship with the partner.  Requirements then apply as to the minimum level of income or savings, adequate accommodation, availability of “specified evidence” of finance, and immigration status of both partners at the time of the application.

The new rules also include a promising paragraph called “Exception EX.1”. This paragraph stands on it own without any functional link to the surrounding list of requirements. It modestly declares that it applies to those who have a genuine and subsisting parental relationship with a child in the UK and to those who have a genuine and subsisting relationship with a partner in the UK. There is now EX.2, even if beginning of the numbering hints at potential continuation.  The paragraph does not expand on the way the exception operates. It is inviting to be read as an”exemption” –  which in fact it is not. The exception is referred to within the Appendix and its functionality is surprisingly limited.

On the whole Zambrano children are still relying on the established case law, on Article 8 rights in the broader interpretation (as opposed to the UKBA version) and Article 55 of the Borders, Citizenship and Immigration Act 2009. These legal grounds still hold for those who fall through the net under the Immigration Rules or the Regulations.

So, if an application for a Zambrano carer has to be made outside the Rules and outside the Regulations, it is expedient to decide whether to apply for an EEA residence permit or for leave to remain. Either option has its advantages and disadvantages.

For example, an application for an EEA residence permit will cost £55 from 1st July 2013.  An application for leave to remain costs £578 for one applicant and goes up depending on the number of dependants. However, “derivative right of residence” card issued as an EEA residence permit will not give entitlement to means tested benefits, such as for example housing benefit.  Those who may need to rely on public funds might find the investment in the application fee worthwhile.

Another aspect to bear in mind is the strategy of challenging a refusal, as bad decision making has reached epidemic scale in the UKBA in the recent months. Refusal of an EEA residence card bears the right of appeal to an independent tribunal.  Refusal to extend leave to remain also bears the right of appeal where as a result of the decision the applicant is left with no permission to remain in the country. Yet, where an application was made at the time when the applicant had no right to be in the UK refusal to grant leave does not give rise to a right of appeal, unless the UKBA have made a decision to remove the applicant from the UK despite the Human Rights arguments that had been set forward before them.

It is important to plan ahead for any possible set backs and long term goals. With a good strategy, Zambrano carers should be successful.