EU Treaty Rights & Article 8 : new UK decision on the application of Zambrano principles

The UK Immigration and Asylum Chamber last week determined Sanade and Others (British children - Zambrano  Dereci ) [2012] UKUT 00048 (IAC)  giving consideration to a number of highly relevant and fluid areas including the rights of British citizen children in light of the recent UK decision of  ZH (Tanzania) v SSHD [2011] UKSC 4 and the reliance on EU citizenship rights following the decisions of the Court of Justice of the European Union in Zambrano   and Dereci.  Of particular interest is the application of the so-called Zambrano principle as clarified in the more recent decision in Dereci where the parties involved have not exercised their Treaty rights. See our previous posting on the decision in Dereci.

The decision arose out of three linked cases that shared similar facts. Each appellant is married to a British woman and each have minor British citizen children who were either born in the UK or have lived there since an early age. Each appellant had been convicted of a criminal offence such that the Secretary of State sought to deport them. Notably, the citizen spouses and children had never exercised Treaty rights to move and reside in another Member State. They are British and have remained there throughout.

The appellants each put forward the argument, among others, that their removal would impair the rights of their citizen spouses and children to genuine enjoyment of the substance of their rights as EU citizens, relying on Article 20 TFEU. That is, that their family life would be infringed on by removal of the non-nationals spouse/father, and this would amount to a deprivation of proper enjoyment of the substance of EU citizenship rights of the remaining family members.

The Tribunal recognised that citizenship of the Union is intended to be the fundamental status of nationals of the Member States, as reiterated in Zambrano. However, citing Dereci, the decision concludes that removal of the father in these cases, while it would have an adverse economic impact on all the families and would impact on the interests of each child living in a household with their father, it would not actually require the spouses or children to leave the UK. In short, economic reasons for maintaining family unity are not sufficient and the effectiveness of Union citizenship does not risk being undermined.

The Tribunal stated that the focus instead should be on the application of Article 8 stating at paragraph 90: “in our judgment, if on the facts removal of the appellant will not require the children or spouse to follow because they have no capacity for exercising their Treaty rights independent of the person facing removal, what is being impaired is not the right to reside in the EU but the right to enjoy family life whilst so residing.” 

The cases therefore fell to be determined on an assessment of Article 8, the protection afforded to family and private life by the European Convention on Human Rights. The Tribunal applied a balancing and proportionality assessment to the facts of each of the three cases, taking into account in particular, the best interests of the child. Following ZH (Tanzania), the Tribunal emphasise that the fact of the British citizenship of the children is held to be of particular relevance when balancing the interests of the State against those of the family, especially where the children have spent a considerable portion of their childhood in the UK and risk losing the advantages of growing up and being educated in their country of nationality, their own culture and their own language.

This decision is helpful for its summary of the principles in the highly significant cases of ZH (Tanzania), Zambrano, and Dereci. It is also instructive in showing the potentially limiting effect of the decision in Dereci. In cases where there is no exercise of EU Treaty Rights, it may be difficult to rely on EU citizenship rights and applicants may be better advised to focus on their family and private life protections under Article 8 of the ECHR.

Brophy Solicitors

17.02.12

ZAMBRANO UPDATE

AUSTRIAN REFERENCE TO COURT OF JUSTICE ON THE RIGHT OF THIRD COUNTRY NATIONAL FATHER OF UNIION CITIZEN CHILDREN TO RESIDE IN EU

The Austrian courts have made lodged a Preliminary Reference to the Court of Justice on the  25^th May 2011 in the case of Dereci and Others v Bundesministers fur Inneres. The reference is involves a request to the Court of Justice to clarify the findings in Zamrbano.

The facts of the case involve Mr Dereci, the first named applicant, who is a Turkish national. He arrived in the Member State without permission in 2001, and unsuccessfully applied for asylum. He subsequently married an Austrian citizen in 2003, and had three children of Union cititizenship. He was without permission to reside and work, and the mother of the children was reliant on State Welfare payments. The question of his right to be granted residency in Austrian came before the Austrian courts, which subsequently referred the following questions to the Court of Justice;

(a) Is Article 20 TFEU to be interpreted as precluding a Member State from refusing to grant to a national of a non-member country - whose spouse and minor children are Union citizens - residence in the Member State of residence of the spouse and children, who are nationals of that Member State, even in the case where those Union citizens are not dependent on the national of a non-member country for their subsistence? (Dereci case)

(b)    Is Article 20 TFEU to be interpreted as precluding a Member State from refusing to grant to a national of a non-member country - whose spouse is a Union citizen - residence in the Member State of residence of that spouse, who is a national of that Member State, even in the case where that Union citizen is not dependent on the national of a non-member country for his or her subsistence? (Heiml and Maduike cases)

(c)    Is Article 20 TFEU to be interpreted as precluding a Member State from refusing to grant to a national of a non-member country - who has reached the age of majority and whose mother is a Union citizen - residence in the Member State of residence of the mother, who is a national of that Member State, even in the case where it is not the Union citizen who is dependent on the national of a non-member country for her subsistence but rather that national of a non-member country who is dependent on the Union citizen for his subsistence? (Kokollari case)

(d)    Is Article 20 TFEU to be interpreted as precluding a Member State from refusing to grant to a national of a non-member country - who has reached the age of majority and whose father is a Union citizen - residence in the Member State of residence of the father, who is a national of that Member State, even in the case where it is not the Union citizen who is dependent on the national of a non-member country for his subsistence but rather the national of a non-member country who receives subsistence support from the Union citizen? (Stevic case)

Perhaps the Court of Justice will use this opportunity to test the boundaries of the novel legal principles laid down in the Zambrano case. However, we understand that this reference is not to be expedited by way of the accelerated procedure, and therefore it may be a number of years before we receive the Court of Justice determination.

Brophy Solicitors

27.7.11