Zambrano - UKBA announces its interpretation...

[Greenie]

See Judgement on carers of British Citizens

and

Zambrano - the Home Office Shows its hand

[bolodeoku]

I envisaged the UKBA to do just this, i believe when the provision is included in the Immigration regulation it should then cover every parent with an EU minor and not just parents with British minors, until then it just one step from where to where!

[Obie]

I am deeply appauled by this flawed interpretation put by the Home Office. There defintion of dependency as not simply financial but more, is mind blowing. This essentially means an estranged father who is paying child support will be precluded.

[joshuaaubin]

To my own view of the Adult British, this goes to the adult British that is permanently incapacitated and need care on daily bases from the non eea spouse or family member because they are permanently incapacitated to work, the view of McCarthy cannot be use on them because they are just like a minor, they are unable to exercise treaty right in another eu country because they cant work due o their permanent incapacity and also if they are not financially okay to be self sufficient. Making them leave the eu to the spouse or family member non eea country will deprived them of their enjoyment in the eu country. And as their career you will acquire right of residence if you can show this, mostly a married disable British career will be the spouse. I think in regarding to the right to residency through this process, the adult British citizen do not need to show they are exercising treaty right unlike the permanently incapacitated from other eu countries in uk.

For the minor, I think you have to show the same that you are the career, where a minor British citizen parent who is a British is not working and taking care of the minor and the non eea try to apply for residency, UKBA will ask who is the career and this will be very arguable why both of you will chose to be the career, one of you most be working that means the British citizen parent most be working and the non eea parent is the one taking care of the children as the British citizen cannot be working and taking care of the children at the same time, but if the British citizen parent is not working and claiming career for the child, that mean one of the parent should be able to care for the child, but let us remember if am right, in the ECJ case both parents are non eea.

I think this was the reason they say not just simply financial reason.

[Bob44]

See Judgement on carers of British Citizens

and

Zambrano - the Home Office Shows its hand

at last they have decided to respond, thank god at least this will keep many people going in the mean time. thanks for the update Greenie you are a star

[Aimar]

UKBA's response to the Zambrano Judgement seems on course to be at par with the Danish response. It raises more questions than it answers, for instance, what is the remedy for a parent of a UK minor who actually has been removed from the country (erroneously as it transpires ) ? If UKBA does not consider financial dependency as a main form of dependency what does constitute ''dependency'' ? what are the main practicalities in putting through such an application in-country and out-of-country ? it all seems a fudge.

[rachel29]

How does the 'sole carer' affect people when both parents are taking care of there child? Surely it should be carer not mearly sole carer. In my case I am british and my child will be british but if my husband not british can not be in the UK then me and my child would both have to leave the UK, how does this transposition affect people in our case.

[Rolfus]

It is odd that there is still nothing clear published about implementing Zambrano on UKBA's website.

From the blogosphere there is the suggestion that the jobsworths will try to prevent parents using Zambrano to obtain an entry clearance. This would be a re-run of M (Chen parents: source of rights) Ivory Coast [2010] UKUT 277 (IAC) (10 August 2010) para 26:(which refers to Article 18TEC now Article 21 TFEU)

Article 18.1 covers both the right to reside freely within the territory of a member state and the right to move to it.

Article 20 TFEU, the operative Article in Zambrano, contains the same language: "the right to move and reside freely". So, it would appear logical that, as established in M, Zambrano parents should be given an EEA FP.

I have already put this in a different thread, but repeat it here:

I wrote to the UKBA asking, in light of what the immigration lawyer community is now calling The Williams Letter, (a bit like The Zimmerman Telegram):

If a non-EU parent without an entry clearance but with Zambrano rights presents him/herself to a port officer, accompanied by the British child, will the parent be admitted to the UK?

I got a reply today(that was on August 3rd):

I am writing to confirm that the UK position on the Ruiz Zambrano
judgment is still being finalised. Until it has been finalised we are
not in a position to answer your questions. However we aim to respond to
your questions within 28 working days.

Are we seriously expected to believe that they don't know what would happen???

[daddy]

Thanks Rolfus, for that letter to UKBA.

Could you pls write them again now their position on Zambrano has been made clear.
Thanks,
Daddy.

[Patience]

I envisaged the UKBA to do just this, i believe when the provision is included in the Immigration regulation it should then cover every parent with an EU minor and not just parents with British minors, until then it just one step from where to where!

So who does it cover according to curremt UKBA interpretation:

Example:

Parent/carer of EU Citizen minor or Parent/carer of British Citizen minor?

[Rolfus]

Readers may be interested in this discussion http://www.immigrationboards.com/viewto ... sc&start=0

[Directive/2004/38/EC]

Some policy documentation out of UKBA: zambrano policy PDF

http://www.whatdotheyknow.com is a great resource!

The full question was at http://www.whatdotheyknow.com/request/d ... n_zambrano

[Rolfus]

I have reproduced the FOI response referred to by Directive, together with some quick lay-person's comments.

From: Subject: Date: Issue number:
European Operational Policy Team Implementation of Ruiz Zambrano judgment 16 September 2011 13/2011

Purpose of Notice
1. This instruction provides interim guidance for all UK Border Agency staff dealing with third country nationals claiming to have acquired a right of residence in the UK on the basis of the Court of Justice of the European Union (ECJ) case of Ruiz Zambrano (C- 34/09).
A. Background

2. The judgment in the case of Ruiz Zambrano established that member states are precluded from refusing a third country national, upon whom a Union citizen is dependent, a right to reside and work in the Member State of residence and nationality of that Union citizen when refusing residence would deprive the Union citizen of the genuine enjoyment of the substance of their European citizenship rights. In practice this means that refusal of the right of residence to the third country national, and so their removal, would require the Union citizen to leave the Member state by virtue of their dependency upon that third country national.

This paragraph incorrectly restates the Zambrano ruling.

The reader will see “when refusing residence would deprive… In practice this means… would require the Union citizen to leave the Member Stateâ€

[pads]

Good post Rolfus.

I agree with this updated policy they are excluding all but a very minority from qualifying at all To be a british citizen you have to have at least one parent who is briitish,
So in all likelihood one parent who is british will still be living here. Also they are saying it won't apply to entry clearance but I can see no reason why it shouldn't like it does in chen.

Keep me posted love pads x

[jaskamalman]

We are non EU citizens in northern Ireland on UK employment visa, our daughter is Irish citizen by birth. We never had Irish visa and never visited Republic of Ireland. So we would like to continue living in Northern Ireland after our UK employment visa expires after 3 months.
Our problem is:
UKBA says, only parents of British citizen can apply under Zambrano case.
And
Irish says, only those living in Republic of Ireland.
So, were will we go after 3 months? Our child has no other nationality other then Irish.
Our daughter was born in UK as EU national. can’t we apply under EEA 2 Zambrano case in UK? Is there a possibility of making appeal on this?
If not UK then does we have to apply for visitor visa to enter in Ireland? If we do, can we rent a house on visitor visa? This is starting to look like an asylum seeker’s application. What if Irish embassy refuse us visitor visa on first place?

[Rolfus]

Easy possibilities:

Have you been in the UK long enough to get permanent residence?

Drive to the Republic of Ireland. Present yourselves to an immigration officer and make a Zambrano application.

Apply for a Chen visa to travel to Ireland (see M (Chen parents/ source of rights) Ivory Coast [2010] UKUT 277 (IAC) (10 August 2010).

Move to the Czech Republic - they give long term residence to parents of EU citizens. (Maybe other EU countries also do this).


Hard possibilities:

Apply for a Zambrano residence in the UK. If it is refused appeal on the basis that they are wrongly interpreting the Zambrano ruling. The court talks about EU citizens, including in their own country. It is probably wrong that UKBA interpret it as applying only to citizens in their own country. You would probably be able to stay while the appeal is undecided.

Apply for an EEA residence card on the basis of Chen and M. If it is refused, appeal on the basis that Chen, M and Zambrano read together entitle you to residence with the right to work.

Do nothing and see if any attempt is made to deport you. If that happens claim Chen/M/Zambrano rights which are directly effective. (I don't recommend this approach).

[jaskamalman]

Easy possibilities:

Have you been in the UK long enough to get permanent residence?

Drive to the Republic of Ireland. Present yourselves to an immigration officer and make a Zambrano application.

Apply for a Chen visa to travel to Ireland (see M (Chen parents/ source of rights) Ivory Coast [2010] UKUT 277 (IAC) (10 August 2010).

Move to the Czech Republic - they give long term residence to parents of EU citizens. (Maybe other EU countries also do this).


Hard possibilities:

Apply for a Zambrano residence in the UK. If it is refused appeal on the basis that they are wrongly interpreting the Zambrano ruling. The court talks about EU citizens, including in their own country. It is probably wrong that UKBA interpret it as applying only to citizens in their own country. You would probably be able to stay while the appeal is undecided.

Apply for an EEA residence card on the basis of Chen and M. If it is refused, appeal on the basis that Chen, M and Zambrano read together entitle you to residence with the right to work.

Do nothing and see if any attempt is made to deport you. If that happens claim Chen/M/Zambrano rights which are directly effective. (I don't recommend this approach).

Roilfus, Thank you very much for your advice.
I would like to live in NI, UK as I can get work here. Problem is, most of my potential employers do not have licences for sponsorship.
I spent almost 7 years on employment visa in UK. But during the changes in 2009, (work permit to tier 2) twice my passport was in home office (for visa renewal under old system and temporary residency for duration of getting licence} this process took 9 months and i was refused. So I left country in 20 days. Soon after I left, my employer got his licence and I came back to UK with in two months. Right now I am on tier2 visa.

Do you think if I apply for ILR, they will it take 2009 episode as a brake in my 5-year residency? (9 months application in process and 2 month out of country)

Or

They will consider it positively because my daughter is a EU national + i have few supporting letters from UK government bodies for my good social and professional work?

[Rolfus]

Jaskamalman, I am afraid this is well outside my experience. I suggest you look at other threads, but really you are going to need advice from a lawyer,

[Rolfus]

There is new ECJ case law:

15 November 2011: Case C-256/11, Dereci and others v Bundesministerium für Inneres

[Rolfus]

I have been underestimating the importance of Moneke(EEA-OFMs) Nigeria [2011]UKUT 00341(IAC). Mr Justice Blake says:

40 We therefore conclude that for the time being, subject to future clarification by the higher courts, IJs should adopt the following approach:
i. A person claiming to be an OFM may either be a dependent or a member of the household of the EEA national: they are alternative ways of qualifying as an OFM.

The Entry Clearance Instructions now say in Chapter 2, 2.4

Regulation 8 ...also covers...parents...who have failed to provide evidence of financial dependency. Note: there is no dependency test for persons who can show that they have lived under the same roof as the EEA national before coming to the UK

It seems to me that the system now accepts that parents of EEA minors are extended family members. So no need to apply for a Chen visa through 257c of the Immigration rules. Just apply for an EEA Family Permit. Permission to work, and en route for citizenship.
There remains the difficulty of British citizens not being EEA nationals under the definition in the Immigration Rules. I will be arguing in court tomorrow that this is an example of a national provision depriving citizens of their rights as prohibited by Zambrano. Also that the principles established in Surinder Singh apply.
In tomorrow's case the British national minor (my son) is exercising treaty rights. But it is another logical step to say that Zambrano parents should be treated as extended family members under EU rules, not as a special category under the Immigration rules.
Jaskamalman: in your case your daughter is exercising treaty rights, so you might be able to apply for a Residence Card as her extended family member.

[Obie]

It seems to me that the system now accepts that parents of EEA minors are extended family members. So no need to apply for a Chen visa through 257c of the Immigration rules. Just apply for an EEA Family Permit. Permission to work, and en route for citizenship.

I dont think that is correct.

The UK legislation don't consider parents of EEA national as a family member within the meaning of Article 2(2) of directive 2004/38EC or regulation 7 of the EEA regulations 2006.

The reason for their decision is that the children are dependant on the Parents as opposed to the parent being dependant on them in line with the description in the regulations and Directive (Dependant Family member in the ascending line).

The family members cannot be part of the Household, because according to KG and Bigia, which the Upper tribunal cannot overrule as it is from a Higher court, the Household has to be that of the EEA national, he or she has to own it or responsible for it, and have his/her dependant living under her roof.

Therefore i don't think the interpretation in Moneke can be used in Chen cases. It will likely be unsuccessful.

[Rolfus]

A very good point Obie.
Might I suggest the following argument: In KG & AK, LJ Buxton at paragraph 77 is arguing that the EU citizen must be the head of the household somewhat faintly.

"It seems very likely that the assumption is that the household will indeed be that of the Union citizen, that is, that he was in colloquial terms head of it, the relations were under his roof, and on that basis he can reasonably wish to be accompanied by the members of it when he leaves for another country."

Bigia in paragraph 43 puts a different complexion on it

"It seems very likely that the assumption is that the household will indeed be that of the Union citizen, that is, that he was in colloquial terms head of it, the relations were under his roof, and on that basis he can reasonably wish to be accompanied by the members of it when he leaves for another country".... "only those OFMs who have been present with the Union citizen in the country from which he has most recently come whose ability or inability to move with him could impact on his exercise of his primary right. This also explains Buxton LJ's requirement of very recent dependency or household membership. Historic but lapsed dependency or membership is irrelevant to the Directive policy of removing obstacles to the Union citizen's freedom of movement and residence rights. Unlike Article 2.2 "family members", it cannot be said of them that "the refusal ... to grant them a right of residence is equally liable to discourage [the] Union citizen from continuing to reside in that Member State" (Metock, paragraph 92).

It can be argued that the real issue is to demonstrate closeness and interference with free movement rights. Chen and Zambrano have clarified that, so in the case of minor children, the faint argument about ownership is redundant.
It could further be argued that any argument based on ownership or headship of a household represents indirect sex discrimination, and is therefore prohibited by Article 10 TFEU and Article 21 CFEU anyway.

[Rolfus]

I submitted my argument as outlined in my post of Dec 6th 10.18 am, and the judge didn't bat an eyelid. I didn't volunteer the difficulty raised by Obie. Written judgment probably won't reach me until January.

[jaskamalman]

Roifus, thank you very much for your suggestions and congratulations for EEA Family Permit for your partner.
Just to campier my case with yours, are you EEA national but not UK citizen? you suggested I can apply for a Residence Card, Can you please tell me how to apply? Is there a new changes/decision by UKBA?

Just to remind you, I am non EEA parent of Irish citizen baby in Northern Ireland.




In tomorrow's case the British national minor (my son) is exercising treaty rights. But it is another logical step to say that Zambrano parents should be treated as extended family members under EU rules, not as a special category under the Immigration rules.
Jaskamalman: in your case your daughter is exercising treaty rights, so you might be able to apply for a Residence Card as her extended family member.[/quote]

[Rolfus]

jaskamalman, If you decide to apply for a Residence Card as the extended family member of a minor child, you need to expect the application to be rejected initially, and for the serious decision-making to be at the appeal. Unless you are very confident about representing yourself at the appeal hearing you will need a lawyer. Better to find the lawyer now, and discuss tactics with him before you make any application.