Primary carers of British citizens – big change in the rules?

Some years the European Court of Justice (the “ECJ” – the supreme court for EU law) passed a judgement called “Zambrano”. This case is often described as a “landmark” decision, and indeed it was.

What happened was that a husband and wife, who were Columbian nationals, were living in Belgium but they did not hold regular immigration/employment status. But they had children who had been born in Belgium and, under Belgian law, the children held Belgian nationality.

By the court’s decision the parents obtained regular immigration leave and the right to work on this basis. If they had not been given leave the whole family might presumably have had to leave Belgium and go and live somewhere else, and this would deprive the children of their EU rights, the children being EU citizens.

And here we get a bit technical. The court did not make this decision on the basis of European free movement rights – under which the parents would not have qualified. Instead they made the decision on the basis of provisions in the European Treaty (the Treaty for the Functioning on the European Union).

Rights of this kind, to differentiate them from free movement rights, are called “derivative rights”.

The Zambrano decision might have come as a surprise to a lot of people, but it could be seen as fair and reasonable. If EU rights are important (and presumably the court thought they are), then that decision protected the EU rights of young children who were in the situation they were in through no fault of their own.

But since then the Zambrano principle has been extended to cover adults as well as children. The upshot of this in the context of the UK is that a non-EEA national who is the “primary carer” of a British citizen living in the UK and who is a direct relative or legal guardian of the British citizen may be able to acquire leave under principles of EU derivative rights if – and only if – it be that if they had to leave the UK then the British citizen would have to leave the UK as well.

A moment’s thought will indicate that in many cases the British citizen is likely to be a child. If they are an adult then in most cases it will be more difficult to prove that they would have to leave the UK if the carer had to leave the UK – although the scenario is not impossible.

So well and good, until the Court of Appeal of England and Wales put a spoke in the wheel.

The English courts, although “junior” to the ECJ in matters of EU law, are nonetheless entitled to interpret the ECJ’s judgements. Court judgements deal with particular facts, but when similar but not quite the same facts emerge for determination a new interpretation may be required.

In the case in 2017 of “Patel” the Court of Appeal analysed the Zambrano principles, and in the course of its analysis it said something controversial. Regarding non-EEA parents of British children who do not hold immigration leave it stated that:

“The Zambrano principle cannot be regarded as a back-door route to residence by such non-EU citizen parents.”

 What did this really mean? Was the court seeking to suddenly impose a whole new additional legal structure to Zambrano situations? If it was it did not say so clearly.

Whatever the truth of this, the Home Office seized the opportunity. As a result of these few words from the Court of Appeal it has amended its Derivative Rights of Residence policy guidance document to state that:

“a Zambrano application must be refused if the applicant: • has never made an application under Appendix FM to the Immigration Rules or any other Article 8 ECHR claim, where that avenue is available”

Some interesting questions are hereby raised:

  • Was the Court of Appeal really intending to make new law?
  • And if so did the court really have the power to supplant EU law in this way?
  • So is the new Home Office policy legal?
  • And what does the Home Office mean by “available”? (A human rights claim is always “available” but in many cases it will be hopelessly weak.)

And some new words elsewhere in the policy guidance are not at all encouraging:

“If an applicant has made an application under Appendix FM to the Immigration Rules or any other Article 8 ECHR claim, and they were refused and exhausted their appeal rights recently, you must consider whether a derivative right of residence exists”

This seems to indicate that an applicant has to reach the “appeal rights exhausted” stage before they can be considered for a Zambrano/carer type of application. This is not good news at all for those affected, and the situation now looks confusing and uncertain. We hope that there will be further litigation/clarification on the subject in due course.

In the meantime, if you are involved or potentially involved in this kind of situation you should take good legal advice.