The
Supreme Court's landmark decision in
ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC4 of 1 February 2011 relating to children's rights in immigration cases generally, and specifying the correct approach to decisions to remove the parents of British children, has already been followed in several recent judgements of the Court of Appeal and the Administrative Court.
Decision makers will now also have to take account of the equally significant judgment of the Court of Justice of the European Union's Grand Chamber judgment in Gerardo Ruiz Zambrano v Office national de l'emploi C-34/-09, which came out on 8 March 2011.
Mr and Mrs Zambrano are Colombian nationals. They arrived in Belgium in 1999 with their three year old son. They applied for asylum. Although their asylum applications did not succeed the Belgian authorities stayed their removal to Colombia because of the state of turmoil prevalent in that country.
They therefore had no legal status in Belgium but also could not be removed. Mr Zambrano's attempts to obtain regularization of his status failed. He obtained employment without possessing the necessary work permit and was sacked when his workplace was raided by the authorities.
However, in 2003 the couple had a second child, Diego on 1 September 2003, and a third, Jessica, on 26 August 2005. Under Belgian nationality law a child born in Belgium who would otherwise have no nationality acquires Belgian nationality.
As
Belgian nationals Diego and Jessica are of course also
Citizens of the European Union (EU), and therefore entitled to the rights of free movement (both for themselves and for their family members) which are listed in the
Citizens' Directive (as Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States is known).
The Court of Justice of the European Union had to decide what the implications of Diego and Jessica's EU citizenship were for their parents. This wasn't the first time that the Court had had to consider how a parent could benefit from his or her child's status in European law. Similar issues arose in Case C 200/02
Zhu and Chen [2004] ECR I 9925 and in Case C 413/99
Baumbast and R [2002] ECR I 7091.
However, in both of those cases the parents derived their rights of residence from the child's right provided by the Citizens' Directive to move freely within the European Union. Both Diego and Jessica however hadn't moved anywhere – they were Belgian nationals living in Belgium.
The focus of the Court wasn't therefore on the Citizens' Directive – instead it was on Article 20 of the Treaty on the Functioning of the European Union. This article gave them the right to live in Belgium. It also gave them the right to have residence documents issued to their parents because this was necessary for the children to enjoy their rights as citizens of the Union. Finally it gave their parents the right to a work permit.
Emphasising that as it had already said frequently:
"citizenship of the Union is intended to be the fundamental status of nationals of the Member States" the Court explained its conclusions as follows:
"44 It must be assumed that such a refusal [to grant residence permits to the children's parents] would lead to a situation where those children, citizens of the Union, would have to leave the territory of the Union in order to accompany their parents. Similarly, if a work permit were not granted to such a person, he would risk not having sufficient resources to provide for himself and his family, which would also result in the children, citizens of the Union, having to leave the territory of the Union. In those circumstances, those citizens of the Union would, as a result, be unable to exercise the substance of the rights conferred on them by virtue of their status as citizens of the Union."
It's interesting to apply this reasoning to the facts as they were in
ZH (Tanzania). That case was an appeal against her deportation from the UK by a Tanzanian mother of two children who are British because they were born in the UK to a British father.
It would seem, following the Zambrano case that a person in ZH's position must be given a residence permit for the UK under European law, since she is the mother of British citizens.
The Court of Justice of the European Union's judgment is predicated on the childrens' being the dependant minor children of their "third country" (which simply means non-European Union national) parents. If they weren't dependant upon their parents the parents would not acquire the right to residence permits and to the right to work in this way.
But it's difficult to envisage a situation when minor children wouldn't be considered to be dependant upon their parents. Even more interestingly – although this case is about children there doesn't seem to be any reason why the rights conferred by Article 20 of the Treaty on the Functioning of the European Union shouldn't equally apply to the third country spouse of a British national.
So the third country spouse would acquire a residence permit because of the importance of his British spouse's right to "exercise the substance of the rights conferred on him or her by virtue of his or her status as a citizen of the Union".
All of these apparent consequences will have to be tested in UK and later European cases.