Monday, May 21, 2012

Unsuccessful Citizenship Application Relying on Zambrano and Common Travel Scheme


Case Study: Jun Yang Zou v Secretary of State for the Home Department [2012] CSOH 78

This case involved the judicial review of a decision of the Secretary of State to refuse the applicant a residence card. The applicant also sought a declaration that she has a right of residence in the UK. 

The applicant, a Chinese national, arrived in the UK in December 1998 with leave to enter as a student until June 2005. The applicant married her partner who arrived in the UK with no valid leave to enter in 2003 and two children were born to them in 2003 and 2007. In May 2011 the applicant applied for a residency card from the UK Border Agency that was refused in September 2011. The applicant now seeks to challenge this refusal.

The basis of the applicant’s claim is that her first son was born in Northern Ireland and so should be viewed as both an Irish and European Union citizen. The applicant’s son had never been to Ireland, but did possess an Irish passport and so the applicant claimed he should be viewed as a EU citizen. It was acknowledged that neither the applicant nor her husband had a right of residence in the UK and that neither of her children acquired British citizenship by virtue of being born there

The applicant relied on the Zambrano decision in claiming that in order for her son to continue to obtain the benefits of the European Union it was necessary for residence and working rights to be granted to the family. The ECJ decided in Zambrano that Article 20 of the TFEU conferred the status of EU citizen on every person holding the nationality of a member state. In distinction with Zambrano, the applicant’s child was not a national of the country for which a right of residence was being made.

The respondent submitted that the Secretary of State’s decision was a correct interpretation of the case. This decision was made on the basis that the applicant’s circumstances did not fall within the scope of Zambrano as the applicant failed to supply evidence that the dependant national was a British citizen. The Dereci judgement was also referred to in that it would be open to the applicant to seek to claim the present rights in the Republic of Ireland as her son’s chosen state of origin.

The applicant also relied on the common travel area arrangements between the UK and the Republic of Ireland under s 1(3) of the Immigration Act in claiming that Irish citizens have a de facto right to reside in the UK and so European citizenship rights can be extended to the member state where they have a de facto right of residence.
The respondent submitted that the terms of the Immigration Act did not apply to the applicant’s son as he had not arrived in the UK from the Republic of Ireland and so was not in a different position to any other citizen of another member state. Even if the common travel scheme rights did apply to the petitioner’s son, these rights arose from domestic legislation, whereas European Citizenship rights arose from the treaty.

The Court of Session accepted that the circumstances in this case differed from those in Zambrano as the applicant’s son was not a UK national. The case therefore has no application to the petitioner’s circumstances. It was noted in Zambrano that the conditions for the acquisition of nationality are for the member state in question to lay down. It is up to the Republic of Ireland to decide whether to grant the applicant’s son citizenship, despite the fact that neither he nor his family has ever visited the country. Even if the applicants son is entitled to EU citizenship by virtue of the same decision, he has not acquired a right of residence in the UK that flows from EU citizenship. The common travel arrangements have no application to the applicant’s son. Accordingly he is neither a UK national nor someone with an identifiable right of residence in this country. The court upheld the decision arrived at by the Secretary of State and refused the applicant’s petition.   

Brophy Solicitors

21.05.12          

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