A short decision by the European Court of Justice, Ruiz Zambrano (European Citizenship) [2011] EUECJ – C- 34/09, has struck a clean blow against the bid by Member State Governments to exclude regulation of their nationals, who have never exercised their right to free movement, from the domain of European Law. Classic economic rights will normally only have force if physical movement between member states has occurred. However, it is now clear that Citizenship of the Union also confers rights which are not bound to movement.
In Zhu and Chen, "Zhu" was born in Northern Ireland to a Chinese national mother "Chen", and acquired Irish citizenship at birth as a result of the nationality laws then in force. After Zhu's birth, Chen moved with Zhu to England, and Chen was granted a right of residence on the basis that it would otherwise be impossible for Zhu, a toddler, to exercise her rights as a citizen of the Union effectively. All Zhu's movement took place within one member state, and she did not have to travel outside the United Kingdom, in order for her mother to establish a right of residence. However, until now the case of Chen might well have been seen as an exceptional case, turning on the fact of an unusual law of nationality, which allowed citizenship of member state to be acquired by a person who had never entered it.
In Zambrano, RZ and his spouse were nationals of Columbia. Following the refusal of RZ's claim for Asylum, he made three applications for residence each of which was refused. In the meantime he took up employment in Belgium for five years despite being without permission to do so, and his spouse gave birth to two children ("X" and "Y") who both acquired Belgium nationality. X and Y were therefore nationals of a member state, their parents were both third country nationals, and neither X or Y had ever travelled to a different member state. The question for the court was whether RZ and his wife could invoke a right of residence in a member state based upon the citizenship of X and Y.
It was common ground that, like Zhu in the case of Chen, X and Y as children could not exercise their rights as Union Citizens to move and reside in any member state fully and effectively without the presence and support of their parents. The right of EU Citizens to move and reside freely within the territory of member states is fundamental. In the view of the Advocate General, it is not a combined right, so that residence and movement cannot be separated, nor is it a sequential right, so that movement must occur chronologically before residence. Instead there are two independent rights: the right to move and the right to reside. It seems reasonable to conclude that the ECJ endorsed this approach in reaching its conclusion that X and Y could invoke a right of residence, without prior movement between member states.
The logic underpinning this principle was explored by the Advocate General in his Opinion. He observed that if RZ relocated outside of the European Union to a third country, X and Y would as EU citizens be able to invoke Diplomatic and Consular protection from Member States' missions established there. It would be an anomalous position if they could seek such protection in a third country outside of the member state of which they were nationals, but yet not be able to exercise their own right to reside in that same member state.
The ECJ found that refusal to grant a right of residence to a third country national with dependent children in a Member State was a breach of that child's right as a citizen of the Union to live in the member state. The court held that it must be assumed that the refusal would lead to a situation where those children would have to leave the territory of the Union (in order to accompany their parents).
There are two points to consider in respect of this part of the decision. The first is whether the outcome of the case would have been different if RZ's spouse had been a national of Belgium who, like X and Y, had never travelled to another member state. In this situation RZ would have had to make the argument, with reference to Article 8, that his removal would require his wife, X and Y to leave the member state. To further complicate the question, if RZ and his spouse were separated, but he maintained contact with the children, how might this have changed the outcome?
Secondly, the Court did not define "dependence". While X and Y were financially dependent on RZ, this should not be construed as the exclusive measure of dependency, nor a necessary element on it. If all facts were identical bar X and Y being financially supported by their grandfather in Columbia, by the logic of the ECJ's decision, the outcome would not have been altered: the presence of RZ and his spouse would still be necessary to effect X and Y's continued residence.
This brings us to a key point of distinction between Chen and the Zambrano case. The court held that if RZ was not granted a work permit, he would risk not having sufficient resources to provide for himself and his family which would also result in the children having to leave the territory and therefore being unable to exercise the substance of the rights conferred on them by Union Citizenship. This can be contrasted with Chen, in which the third country national's derivative right of residence was conditional on her being self sufficient for the purposes of European Law, so that she did not become a burden on the public finances of the host member state, where her child was resident. However, not only was RZ found to be entitled to work, the ECJ's decision does not appear to found that this right was conditional on his past contribution to the public finances, or his previous employment.
The usefulness of this case to Immigration Practitioners in the UK remains to be seen and will turn on how the UK Courts interpret the decision, and whether logic or lottery will govern the case's extension to alternate facts. Interestingly, RZ and his spouse were not removable to their country of nationality – Colombia. This may be a fact used to distinguish the case of RZ from the majority of other likely factual scenarios.
If you are in a marriage or partnership in which one partner is a non EEA national who is without leave to remain in the UK, and you have a British Citizen child together, then you should seek advice to see whether you could effectively invoke European Law to obtain a derivative right of residence in the UK. Duncan Lewis have a team ready to assist with these matters.
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