ZAMBRANO- important right to reside case

http://www.bailii.org/cgi-bin/markup.cgi?doc=/eu/cases/EUECJ/2010/C3409_O.html&query=zambrano&method=boolean

The first link in my post takes you to the ECJ judgment.

Claire’s link is to the advocate general’s opinion.

It is quite interesting the Court doesn’t set out its reasoning in exhaustive detail- very pithy. The AG is very thorough and in some ways I think the Court went much further than the AG was prepared to push it. It is almost like they know it is a major judgment and going to be a benchmark case so they just say it really plain. Very nice.

M

Should add that this also probably means that where a parent of a British child is a “person subject to immigration control” (eg has a spouse visa) then they can still claim (at least) means tested benefits in the same way as if they were British. Should check with an immigration lawyer whether the fact they would be in breach of their immigration conditions by so doing will make a difference- my unimmigration advisor view is that it couldn’t do.

The Daily Mail will be livid and Richard Littlejohn’s head is probably going to explode.

I am not so sure- these kids are “Bwitish” after all.

Really to attack the judgment you would have to say that there is a problem with British nationality law- eg argue that should be changed.

The basis of the decision seems to be that the children were Belgian under the belgian nationality law that existed at the date of birth, The belgian law has since been changed.

I’m not an Immigration expert but I think the default possition under UK nationality law is that the child takes on the nationality of the mother.

The father, if Brittish, can apply for the child to be recorded as British.

This judgement would seem then to only apply to British children of non-British mothers.

This link is the the Borders Agency bit about whether you are a British Citizen if born in the UK:

http://www.ukba.homeoffice.gov.uk/britishcitizenship/othernationality/Britishcitizenship/borninukorqualifyingterritory/

I can already see the DMG memo:

Zambrano only applies where the claimant is a third country national. It does not apply where the parent is an EEA national.

Nick- just to be clear on British nationality law:

1. The basic position is that a child born in the UK who has at least one parent who is either British or is settled in the UK (more or less that equates to having an indefinite leave to remain) will be British at birth (eg without the need for any formal registration etc).

2. Unfortunately, if a child was born before 1/7/2006, to unmarried parents then in law their father was not their father (if you see what I mean) and therefore was not a “parent”.

3. There is a way around the problem of British father’s not married to mother being unable to transmit citizenship automatically which was that if everything registered etc. the child would become british.

4. For kids born on or after 1/7/2006 then if father named on birth cert doesn’t matter if not married.

There is a useful briefing paper here on which kids born in Britain are british: http://www.parliament.uk/briefingpapers/commons/lib/research/briefings/snha-03297.pdf

Martin.

Does this decision have wider implications that extend beyond Baumbast? From my reading of the decision, it seems to essentially say that the child, as a citizen of the union, has the right to remain in the member state and that that right would be meaningless if someone was not there to care and support them. Article 12 doesn’t come into the picture at all.

What’s stopping this logic being applied to a child who is a citizen of the union but not a citizen of the member state? Eg child has Polish nationality and is in the UK?

Nothing, I suppose, but because that would be a different fact case (i.e. the child being in a member state of which he was not a national) it would need a future ECJ case to decide the question.

As I read the ratio of this case, the fact that the parents were third country nationals is essential to the decision. The facts that led to the children being Belgian are themselves unusual, since I don’t know how many countries deny nationality to the childrn of their citizens when the children are born outside the UK. They were Belgian to avoid them being otherwise stateless.

The finel paragraph of the judgment makes it clear to me that the problem is one of a person who happens to be a European citizen being deprived of the right to remain within the European Union if his parents have no right to reside there. Arguably it can never apply to a person whose parents are nationals of another EEA Member State, because they can always move to another Member State or indeed go back to their country of origin.

The fact that the appellant and his partner as failed asylum seekers had been granted the equivalent of our exceptional leave to remain, because of the unstable situation in Colombia, must also be important on these facts. The Court no doubt felt that if it was not reasonable for the parents who were Colombian to go back to Colombia, a fortiori it was totally unreasonable to expect young children who were Belgian citizens to do so. There’s a sort of implied “we can’t have European citizens being forced out of the EEA to go and live in uncivilised places like Colombia” feel to the decision. Of course as we all know you can only get into the EEA if you have a high standard of civilisation and looking after people properly…so anywhere in the EEA is bound to be all right.

I wouldn’t hold out much hope for unmarried Polish women, even if their children may be British by descent. The precedent, as the lawyers say, is probably to be confined to its facts..

We need to make sure we don’t fall into the same error that Commissioner Rowland made in CIS/1121/2007 and the error the Court of Appeal made when giving a provisional view in their reference of the Teixeira and Ibrahim cases to the ECJ:

In those cases the national courts decided they would re-read the ECJ case of Baumbast in much the same way you suggest Zambrano is going to be read: surely, the national courts thought, the ECJ didn’t mean what it said in Baumbast? Surely, they would have given a different answer on the question of the rights of residence of Mrs Baumbast as the primary carer of the child of a former worker receiving education, had Mr Baumbast not been so splendidly wealthy?

The ECJ then explained in its Teixeira and Ibrahim judgments that it couldn’t help noticing that Mr Baumbasts self sufficiency had been nothing to do with its answer.

In much the same way, we shouldn’t say that the fact that the Belgian kids in Zambrano would otherwise have nowhere in the EU to live is crucial to that judgment- this is not what the Court say. The Court say simply that the Belgian kids have an EU law right of residence in Belgium. They make this as an absolute statement at para 40.

They then say that this right must be effective (effectiveness of rights being a basic principle of EU law) - para 42. This means the parents have to live there too.

They don’t dwell on any other issue and other issues are just as irrelevant as Mr Baumbast’s self sufficiency was to his children’s right of residence as kids in education etc.

Finally, it has to be said that the ECJ did not caveat its judgment nearly to the extent that the Advocate General suggested they might. That indicates that they really weren’t too bothered about the range of factors discussed there to my mind.

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There are now at least 5 ECJ cases where that Court has :

1) Found that a child has a right of residence in the UK; and
2) Gone on to say that this must mean the parent of the child who looks after them must also have a right of residence.

See: Baumbast, Zhu and Chen, Teixeira, Ibrahim and now Zambrano.

It is of note that Maria Teixeira was in fact an EU national.

The nationality of the parent is irrelevant however: this is because what is being protected is the right of residence of the child. If they need a parent to live with them to ensure their right of residence is effective then the parent can live with them.

Furthermore, it is worth noting that citizenship of the EU and the right to move to and reside in EU states works as follows:

1. To have an EU law right of residence in a member state other than your own you will need to meet the limitations and conditions set forth in Directive 2004/38 (where it is proportionate to insist on those conditions being met).

2. However, those limitations and conditions do not apply to your EU law right of residence to live in your own country. That is because they are not caught by the Directive because Article 3 does not place them within its scope. This means EU nationals have an automatic EU law right of residence to live in their own country regardless of sufficiency of resources etc.

The above is why the judgment will not assist parents of non-British EU kids- these kids don’t have an automatic right of residence in EU law free of conditions.

DMG Memo 35/11 gives advice on staying lookalikes of recent UT decision (CIS/886/08 - not yet published to UT website), which held that, following the Court of Justice of the European Union decision in Zambrano, an EU national had a right to reside because otherwise her daughter’s right to reside as a UK citizen would be ineffective -

see rightsnet news story -

http://www.rightsnet.org.uk/news/story/staying-lookalikes-of-recent-upper-tribunal-right-to-reside-decision/

The decision referred to in the above guidance is attached.

I have to say:

1. Judge Jacobs seems to have a real problem with question of whether needs to be a common period when child in education and parent a worker for a Teixeira right to exist- this seems to me absolutely clear from the Courts answer to question 2(c) in that case.

2. It is difficult to see how his reasoning squares with Dereci - to which the DMG Memo refers. I think Dereci also raises problems with my initial reasoning in this thread - the key issue seems to me to be whether the British child would be deprived of being able to live anywhere in the EU - child in this case could presumably go to Germany with mum.

Martin.