Zambrano and McCarthy: what it means for residents in Northern Ireland

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1 LAW CENTRE (NI) INFORMATION BRIEFING February 2012 Zambrano and McCarthy: what it means for residents in Northern Ireland At a glance European Union (EU) case law has established that a non-eea parent of a British (and possibly Irish) citizen child should be able to apply for the right to work and reside in the UK on the basis of that child s nationality, if the child would otherwise have to leave the UK in order to remain with that parent. (EEA= European Economic Area) This has been extended to non-eea carers of British citizen adults by the UK Border Agency (UKBA). UKBA guidance on the cases states that there has to be a strong element of dependency for applications to succeed. This guidance is potentially open to challenge. Dual British/Irish nationals who have never moved to another European state may be prevented from benefiting from the EEA Regulations, for example they may not be able to bring non-eea family members to the UK. UKBA has indicated its intention to amend the relevant legislation to formalise this position but, until that time, applicants should continue to apply as before. Moreover, there is a strong argument that those dual British/Irish nationals who have never moved within the EU will still be able to benefit from the EEA Regulations if they are workers, self-employed, self-sufficient etc.

2 Introduction In 2011, the European Court of Justice (ECJ) made two important decisions. The first case, Zambrano v Office national de l Emploi (C-34/09) may carry real benefit for many non-european Union nationals resident in the United Kingdom and other member states of the EU. It has already generated major implications for member states. The second judgment, McCarthy v SSHD, case C-434/09, however, was not so warmly welcomed, casting a shadow over the landmark decision in Zambrano and prompting much debate about how these two decisions can possibly sit together. McCarthy centred on the issue of beneficiaries of Directive 2004/38 1 (which deals with free movement and residence rights within the EU) as opposed to the internal situation at the heart of Zambrano. The UK Border Agency (UKBA) has issued its own guidance in respect of both cases and the practical implications on applicants in the UK. This guidance, however, is not necessarily the correct interpretation of the EU stance and could be open to challenges by EU nationals and their families in the UK. This briefing will look at the background and overriding principles in both cases, along with the potential practical implications on individual applicants. We will also briefly consider the more recent case of Dereci 2, which was anticipated as a solution to the Zambrano v McCarthy conundrum. Zambrano case: main principles and background The judgment of the court s Grand Chamber in Zambrano concerns the right of Colombian citizens Gerard Ruiz Zambrano and his wife to reside in Belgium on account of the Belgian nationality of their two younger children. Their son Diego and daughter Jessica were born in Belgium in 2003 while their parents resided there after being granted a form of humanitarian protection. Both children acquired Belgian nationality because they would otherwise have been stateless. Their father got a job but he and his wife subsequently lost their protective status in Belgium and Mr Zambrano was prevented from working. His claim for unemployment benefits was rejected and his appeal against that decision led to this referral to the ECJ. The case centred around the two children, who had not exercised their rights of free movement as EU nationals, but instead were relying on their EU citizenship in a purely internal situation. The Court held that, Article 20 3 of the Treaty on the Functioning of the European Union (TFEU) must be interpreted as meaning that it precludes a Member State from refusing a third country national upon whom his minor children, who are European 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, Page 2

3 in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of the European Citizen. Accordingly, EU citizen children derive rights directly from Article 20 of TFEU. This should mean that, for British children (and arguably Irish children see page 5 for further information on this point) living in the UK, these rights should include: the right to live in the UK; the right for the children s third country national parents to live in the UK with them as this is necessary for the children to enjoy their rights as citizens of the Union; and the right to a work permit for the third country national parents to support the children. These rights are based on the premise that if the third country national parents were not allowed to reside and work in the country of the nationality of the child, the EU minor citizen would be forced to leave the territory of the member state and relinquish her/his rights under EU law. This should mean, in theory, that parents of British children, irrespective of their nationality or immigration status should be given the right to reside and work in the UK, as long as the children are minors and dependent on them. This case therefore extends the reach of EU law beyond the Citizens Directive 2004/38/ EC and avoids any of the restrictions contained in the Directive. In other words, there is no need to show the exercise of free movement, nor the exercise of so-called treaty rights, whereby someone must be a worker, self-employed etc. UKBA interpretation and guidance on Zambrano In September 2011, UKBA released its guidance on this landmark judgment, adopting quite a restrictive approach, with the notion of dependency at its core. UKBA has stated that the judgment will not apply in cases where the dependency is simply financial. There must be evidence of 'emotional' dependency. However, UKBA has widened its interpretation in the sense that applicants can be adult dependants and not just British citizen minor dependants. In summary, UKBA has adopted the following stance: This judgment creates a right to reside and work for the sole carer of a dependent British citizen when that carer has no other right of residence in the UK and removing the carer from the UK would mean the British Citizen would have to leave the European Union. We will issue a certificate of application to those who are able to show: evidence that the dependent national is a British Citizen; evidence of the relationship between the applicant and the British Citizen; and Page 3

4 adequate evidence of dependency between the applicant and the British Citizen UKBA has indicated that, where sufficient evidence has been presented, these applications will be accepted and applicants will be issued with a Certificate of Application which will enable them to work while substantive consideration of their application is outstanding. Significantly, any applicants subject to removal action who potentially meet the scope of Zambrano should have removal action suspended until a substantive decision is made. In cases where there is another parent, guardian or carer upon whom the child is, or can become, dependent, then UKBA s approach is that Zambrano cannot apply. This reasoning is based on the premise that removal of the third country national in such circumstances would not oblige the child to leave the EU as an alternative carer is available. In our opinion, this stance may be open to challenge. Full UKBA guidance and details on how to apply under this category can be found at the following link: september/48-british-carers Who are the potential beneficiaries under Zambrano? Arguably, the most notable outcome of this case relates to the fact that there does not have to be any movement between EU member states. We are not therefore looking at those situations where an EU national from one EU country must have moved to another. We are instead looking at internal rights within the UK, ie a British national within the UK (and arguably an Irish national within Northern Ireland). So, looking at these internal rights, in order to benefit from this judgment, a potential applicant must show that s/he, as an EU citizen (eg a British national in UK) must face a potential deprivation of the genuine enjoyment of the substance of the rights conferred by the virtue of the status of EU citizenship. In our view, this is the fundamental message to be derived from the judgment. In addition, an element of dependency must exist in order for an applicant to succeed. Whether UKBA s interpretation of dependency is correct or not, remains to be seen. In the meantime, however, it can be said that the beneficiaries of Zambrano within the UK are where there are: a British citizen (who is also an EU citizen) adult or minor; and an unlawfully present person, whose presence in the UK is required to avoid a violation of that British citizen s genuine enjoyment of the substance of her/his rights as an EU citizen, and; Page 4

5 the unlawfully present person may not be precluded from obtaining a right of residence, permission to work and access to social assistance if to do so would occasion such a violation of the British citizen s genuine enjoyment of the substance of her/his rights as an EU citizen. *In addition, there is an argument that this could equally apply to Irish citizens within Northern Ireland. The Good Friday Agreement enshrines the rights of the people of Northern Ireland and recognizes that it is a birthright of all of the people of NI to identify themselves as Irish, British or both. Applicants in this position should seek specialist legal advice as this is a complex area of law. McCarthy case: main principles and background Following on from this broad interpretation of Article 20 is the decision of the Third Chamber of the ECJ in McCarthy v SSHD, case C-434/09. Shirley McCarthy, a dual British and Irish citizen, was born and had always lived in the UK. She had never worked, and received state benefits. In 2002, she married a Jamaican citizen who had no valid leave to remain in the UK at the time. Following her marriage, she acquired an Irish passport for the first time, and sought to assert her own rights of free movement within the EU, as well as those of her husband. Two questions were referred to the ECJ: first, whether a dual British/Irish national who had lived her whole life in the UK is a beneficiary of Directive 2004/38; second, where such a person has not satisfied the relevant part of that Directive (ie Article 7 which states that an individual must be a worker, self-employed, selfsufficient etc), whether s/he could still be said to be residing legally for the purposes of Article 16 of the same Directive. 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. Her husband could not therefore derive similar rights. The ECJ declined to answer the second question in relation to legal residence but did refer to Article 20 of the Treaty and the decision of the Grand Chamber in Zambrano. The Court distinguished the latter, finding that no element of Mrs McCarthy s situation, as described by the national court, indicated that the national measure taken against her had the effect of depriving her of the genuine enjoyment of the substance of her EU rights. Essentially, she was an adult, and denial of access to her EU rights did not have the same effect as a similar measure did on the Zambrano children. The national decision did not oblige her to leave the territory of the EU, as a negative decision would have done in Zambrano. In summary, the Court found that Mrs McCarthy s case fell outside European law. Page 5

6 UKBA interpretation and guidance on McCarthy UKBA issued internal guidance to all caseworkers following this decision, indicating the following: In McCarthy, the ECJ determined that a person who holds the nationality of the host Member State and has never exercised their right of free movement and residence do not benefit from the terms of the Free Movement Directive. This is regardless of whether or not they hold dual nationality with another EEA State. This also means that family members are also unable to derive a right of residence under the Directive on the basis of their relationship to such a national. The intention is to amend the [EEA Regs 2006] Regulations to reflect the terms of the McCarthy judgment. However, until the Regulations are amended, people who hold British Nationality and the nationality of another EEA member state must continue to be allowed to rely on that other nationality to benefit from the Regulations. It is therefore very clear that the future intention of UKBA is to amend the Immigration (EEA) Regulations 2006 in order to reflect the position in McCarthy. Until this time, however, all applications by dual British/EEA nationals should be processed as before. What are the practical implications of this decision? Given the fact that dual nationality is a very prevalent issue in Northern Ireland, it is important to understand what this decision could mean for residents and their family members here. Unfortunately, despite UKBA guidance above, it appears that not all embassies are following this guidance consistently and we have seen a spate of refusals on the back of the McCarthy decision. However, we have, to date, successfully challenged all of these cases before the tribunal. Until the Regulations are amended, dual British/Irish nationals should continue to benefit as before under EEA law. It remains to be seen what changes will be made to the Regulations and what the likely timeframe will be. Moreover, despite the fact that the UKBA intends to amend the domestic provisions governing EEA law, it is arguable that McCarthy must be limited to its particular facts and should therefore have limited application. Mrs McCarthy had never worked in the UK, she had never been self-employed and was never deemed self-sufficient. She could never then have relied on her free movement rights. It is therefore 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 a recent case of MAH Canada 4, whereby the Upper Tribunal reasoned as follows: Page 6

7 it appears that what defeated Ms McCarthy s application was that she was never a worker within the meaning of EU Law and consequently could not have exercised EU Treaty Rights to reside in another State Moreover, further arguments distinguishing the case of McCarthy have been accepted by the tribunal and applicants are advised to continue to apply under European Law, as before. At present, it appears that neither UKBA nor the courts are completely clear of the correct approach to be adopted. What is the current position for EU nationals and their family members? Clearly, McCarthy shifted the Zambrano model considerably and has meant that the UK, and other member states, are struggling to reconcile these two important decisions. Much focus therefore was placed on the outcome of a further CJEU case, Dereci, which was heralded as the answer to the ambiguous legacy left by these two cases. Unfortunately, while providing some clarity, Dereci still leaves some fundamental issues in the dark. However, focusing on what it does say, the CJEU found: as held in Zambrano, Article 20 precludes national measures which have the effect of depriving EU citizens of the genuine enjoyment of the substance of the rights conferred by virtue of the status; these Article 20 rights should be protected even if no internal EU border has been crossed; in order to show a denial of the genuine enjoyment of the substance of such rights, the EU citizen must show that s/he has to leave not only the territory of the member state of which s/he is a national but also the territory of the EU as a whole; the mere desirability of keeping a family together is not enough to make out a case, since expulsion from the EU will not inevitably force the EU citizen to leave too, and it is for the referring court to verify, on facts proven before it, whether a denial of the genuine enjoyment of the substance of EU citizens rights will follow; the above condition is without prejudice to the right to the protection of family life (whether Article 8 ECHR 5 or Article 7 of the Charter 6 ) which may mean that a right of residence cannot be refused in any event. In summary, the court found that as long as an EU citizen can move from her/his member state of origin to another member state and exercise free movement and residence rights, family reunion can be enjoyed that way. Otherwise, according to Dereci, the only way that an EU citizen can seemingly enjoy family reunion with third country nationals is if s/he simply cannot move (rather than would prefer not to) and to date, the only tangible example of this scenario is the Zambrano case. The Zambrano chil- Page 7

8 dren were too young to move and exercise treaty rights by themselves. Finally, if the family cannot move to another member state, then Article 7 of the Charter or Article 8 ECHR must be applied. Dereci does therefore appear to limit the scope of Zambrano, and sets out Zambrano as an exceptional case, limited to its particular circumstances. It also appears to prevent adult applicants from relying on Zambrano, since (in the case of a spouse, for example, as illustrated in the McCarthy case) that couple can, in theory, always move within the EU. However, as can be seen from UKBA s guidance above on Zambrano, there may be circumstances where the couple simply cannot move within the EU. Once again though, these would appear to be the exceptional cases. In truth, we will have to await further guidance from the courts before we fully understand the ramifications of these recent European decisions and how they will impact on EU Nationals and their families in the UK. Notes 1. This was transposed into National Legislation by virtue of the Immigration (EEA) Regulations 2006, to which we refer at a later point. 2. Dereci and others (CJEU C-256/11, 15 Nov 2011) 3. Article 20 provides that, Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship. 4. MAH (dual nationality - permanent residence) Canada [2010] UKUT 445 (IAC) 5. Article 8 of the European Convention on Human Rights provides a right to respect for one s private and family life, his home and his correspondence subject to certain restrictions that are in accordance with law and necessary in a democratic society. 6. The Charter of Fundamental Rights of the European Union Copyright Law Centre (NI) February 2012 Immigration Advice: Mon to Fri 9.30am to 12 noon, and For more information about the Law Centre: Law Centre