The Judgment of the European Court of Justice (Grand Chamber) in the case of Ruiz Zambrano on 8 March 2011 Case C-34/09 confirmed that Article 20 TFEU is to be interpreted as meaning that it precludes a Member State from refusing a third country national upon whom his minor children, who are European Union citizens, are dependent, a right of residence in the Member State of residence and nationality of those children, and from refusing to grant a work permit to that third country national, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen.
This case concerned the non-EU (Colombian) parents of Belgian children living in Belgium and the ECJ ruled that requiring them to leave Belgium would in effect result in the departure of the children from the EU, the consequences of which would be to risk the ‘genuine enjoyment of the substance’ of those children’s EU citizenship rights.
We note that applications whereby both parents are non-EU Nationals is less common than in cases where only one parent is a non-EU National. However, in such cases, the Home Office tend argue that the non-EU parent is not entitled to a derivative right of resident if the other parent is legally residing in the UK. It is for the non-EU parent to prove that they are a primary carer of their child but the National authorities must take into account the best interests of that child. The best interests of the child include several factors such as the age of the child, the child’s living circumstances, the physical and emotional development of the child, the emotional ties to both parents, the level of negative impact a separation from a parent would have on the child and other risks.
However, it was ruled in the case of Chavez-Vilchez & Others C-133/15 by the ECJ on 10 May 2017 that although the ECJ accepted that the burden of proof lay upon the non-EU parent (para 75) that they are a primary carer, it also ruled that national authorities ‘must ensure that the application of national legislation on the burden of proof’ in such cases ‘does not undermine the effectiveness’ of EU citizenship rights (para 76). The Home Office is therefore required to make ‘the necessary inquiries’ to find out where the EU citizen parent lived, ‘whether that parent is, or is not, actually able and willing to assume sole responsibility for the primary day-to-day care of the child’ and whether the EU citizen child was dependent upon the non-EU parent (para 77).
The ECJ ruled that:
1.Article 20 TFEU must be interpreted as meaning that for the purposes of assessing whether a child who is a citizen of the European Union would be compelled to leave the territory of the European Union as a whole and thereby deprived of the genuine enjoyment of the substance of the rights conferred on him by that article if the child’s third-country national parent were refused a right of residence in the Member State concerned, the fact that the other parent, who is a Union citizen, is actually able and willing to assume sole responsibility for the primary day-to-day care of the child is a relevant factor, but it is not in itself a sufficient ground for a conclusion that there is not, between the third-country national parent and the child, such a relationship of dependency that the child would indeed be so compelled were there to be such a refusal of a right of residence. Such an assessment must take into account, in the best interests of the child concerned, all the specific circumstances, including the age of the child, the child’s physical and emotional development, the extent of his emotional ties both to the Union citizen parent and to the third-country national parent, and the risks which separation from the latter might entail for the child’s equilibrium.
AND
2. Article 20 TFEU must be interpreted as not precluding a Member State from providing that the right of residence in its territory of a third-country national, who is a parent of a minor child that is a national of that Member State and who is responsible for the primary day-to-day care of that child, is subject to the requirement that the third-country national must provide evidence to prove that a refusal of a right of residence to the third-country national parent would deprive the child of the genuine enjoyment of the substance of the rights pertaining to the child’s status as a Union citizen, by obliging the child to leave the territory of the European Union, as a whole. It is however for the competent authorities of the Member State concerned to undertake, on the basis of the evidence provided by the third-country national, the necessary enquiries in order to be able to assess, in the light of all the specific circumstances, whether a refusal would have such consequences.
The Home Office confirms that you may be able to apply for an EEA family permit/ residence card on the basis that you have a derivative right of residence under the following categories:
- primary carer of an EEA child in the UK who is financially independent
- child of an EEA former worker and you’re currently in education in the UK
- primary carer of a child of an EEA former worker and the child is currently in education in the UK
- primary carer of a British child
- primary carer of a British dependent adult
- child of a primary carer who qualifies through one of these categories
(As a ‘primary carer’, you have responsibility for the day to day care of a person, including making decisions about their education, health, and finances. You must be a family member or their legal guardian, and can be their main carer or share that responsibility with someone else).
If you have a child that is British or holds another European Nationality and you want to find out if you qualify to apply via this route, please get in touch for a initial consultation.
BREXIT point of view
As it stands, we are continuing to submit applications under the Zambrano route but of course, no one really knows how Brexit will impact Zambrano carers. It is of course natural to be concerned about your rights post Brexit since the draft EU position for negotiating acquired rights does not appear to cover DRR (Zambrano) carers. However, from the UK’s perspective, the case law concerns non-EU parents of UK citizens who have not moved within the EU meaning no free movement rights have been acquired. This is more of an issue concerning EU citizenship rights which will not necessarily be lost when the UK ceases to be a Member State, since citizenship of the EU is defined as deriving from the nationality of a Member State. Obviously, from a practical and human rights point of view, any loss of legal status could damage or even tear up the family and cause serious harm to the lives of the children involved. We therefore feel that Zambrano carers should be afforded some protection in the Brexit talks and if not, by National law.