Wednesday, May 16, 2012

Free Movement after Zambrano, McCarthy and Dereci

The judgement of the European Court of Justice in the case of Zambrano v Office national de l’emploi (C-34/09) concerned the right of Columbian citizens, Mr Zambrano and his wife, to reside in Belgium on account of the Belgian nationality of their two younger children. Their two children acquired Belgian nationality after being born there after their parents were granted a form of humanitarian protection to reside there. The parents then lost their protective status in Belgium.

The case centred around their two children who had not exercised their rights of free movement as EU nationals but relied purely on their EU citizenship in an internal situation. The court held that EU citizen children derive the rights under Article 20 of the TFEU to live in Belgium, to their third country national parents to live with them and the right of their parents to a work permit to support their children. This was based on the fact that if their parents were not allowed to reside the children, they would be denied their EU rights in being forced to leave the member state.

The UKBA adopted quite a strict interpretation of Zambrano and focussed on the notion of dependency. They adopted the stance that the judgement creates a right to reside and work for an applicant in the following circumstances;

The (i) sole carer of a (ii)dependent   (iii)UK citizen child within the UK, (iv)where that carer has no other right of residence in the UK.

In cases where there is another parent, guardian or carer upon whom the child is dependent then the UKBA say Zambrano cannot apply as the removal of the third country national would not oblige the child to leave the EU as an alternative carer is available.

This is an argument which has surfaced in Ireland also, and may be open to challenge on the basis that it fails to consider the rights of a child to the company of both parents, as protected by Article 24 of the Charter of Fundamental Rights.

The most notable outcome of this case is that there does not have to be any movement between EU member states and so it concerns internal situations within the Member States.

Following on from the broad interpretation of Article 20 in the Zambrano case is the decision of the ECJ in McCarthy v SSHD. The applicant was a dual British and Irish citizen who was born and always lived in the UK. She never worked and received state benefits. In 2002 she married a Jamaican citizen who had no valid leave to remain in the state. After her marriage she acquired an Irish passport and sought to assert her and her husband’s right to free movement within the EU. 

The two questions referred to the ECJ were whether a dual British/Irish citizen who lived her whole life in the UK is a beneficiary of Directive 2004/38. The second question was where such a person has not satisfied the relevant part of the directive whether they could still be residing legally under Article 16 (i.e to have established a right to permanent residence).

The ECJ found that Mrs McCarthy was not a beneficiary under Article 3 of the Directive because she had never moved to another member state nor could her husband derive similar rights. The ECJ declined to answer the second question. The court distinguished this case from Zambrano as the national measures taken against Mrs McCarthy had not deprived her of the genuine enjoyment of her EU rights. The denial of access to her EU rights as an adult did not have the same effect as a similar measure did on the Zambrano children as it did not oblige her to leave EU territory as a negative decision would have done in Zambrano. In summary the court found that McCarthy’s case fell outside EU law and was a matter of purely internal law within the UK.

The UKBA issued internal guidance indicating that the ECJ determined in McCarthy that a person holding the nationality of the host state who has never exercised their right to free movement cannot benefit from the directive, regardless of whether they have dual nationality. This also means that family members are unable to derive a right of residence under the directive on the basis of their relationship to a national citizen. The intention is to amend the regulations to reflect the terms of the McCarthy judgement, but until then those who hold dual nationality must be allowed to rely on this to benefit from the regulations. The UKBA’s intention is therefore to amend the Immigration Regulations to reflect the position in McCarthy, until then all will be processed as before.

Despite UKBA guidance, not all embassies are following this guidance consistently and there have been a number of refusals based on the McCarthy decision that have all been successfully challenged. Until the regulations are amended dual British/Irish nationals should continue to benefit under EU law. It is arguable that McCarthy should be limited to its facts as Mrs McCarthy had never worked or been self-sufficient and so could not rely on her free movement rights. It is arguable that dual British/Irish nationals residing in Northern Ireland can be distinguished from Mrs McCarthy if they are workers, self-employed or self-sufficient. This approach was adopted in the recent case of MAH Canada where the court stated that it appears that what defeated Mrs McCarthy’s application was that she was never a worker within the meaning of EU law and should not have exercised her treaty rights to reside in another state. It appears that neither the UKBA nor the courts are completely clear of which approach to adopt.

As the national courts of the various member states are struggling to reconcile the decisions of Zambrano and McCarthy, much focus has been placed on the Dereci case. While this case did provide some clarity it still left many issues un-addressed. In Dereci, the Court of Justice found that as long as an EU citizen can move from their member state of origin to another member state and exercise free movement and residence rights, they can enjoy family reunion. Otherwise the only way an EU citizen can enjoy family reunion with a third country national is if they simply cannot move and the only tangible example of this so far is Zambrano. If the family cannot move to another member state then Article 7 or Article 8 must be applied. 

Dereci limits Zambrano and sets it out as an exceptional case limited to its particular circumstances. It also appears to prevent adult applicants relying on Zambrano as in theory an adult couple can always move within the EU. However, there may be circumstances where they cannot move and so again they appear to be exceptional cases. The non-migrant EU citizen would need to produce before her national court compelling evidence that her situation would only be addressed with the presence of the third country national family member and failing this they would be forced to leave the EU.

We will have to await further guidance from the courts before we can fully understand the ramifications of these recent European decisions and how they will impact on EU nationals and their families.              


  1. when will this zambrano law take effects,because ukba just issuing applicants with COA without no visa for the past 12 months now.

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