Zambrano scope narrowed by Court of Justice’s judgment in Dereci

28 November 2011

In its judgment in Dereci and others (CJEU C-256/11, 15 Nov 2011) the Court of Justice of the European Union has clarified the scope of its judgment earlier this year in Ruiz Zambrano [2011] EUECJ Case C-34/09 OJ 2011 C130/2.

The case concerned applications made by Mr Dereci and four other non-European Union nationals for residence permits to entitle them to live and work in Austria. Each applicant had family members living in Austria.

In the Zambrano case, which was reported herei in March of 2011, the Court of Justice considered the applications for regularisation of their stay made by the Colombian parents of two children who had been born in Belgium.

Central to the Zambrano case was the fact that although their parents had failed in their asylum applications in Belgium it had not been possible for the Belgian authorities to remove them to Colombia due to the general tumultuous situation prevailing in that country. Under Belgian nationality law children born in Belgium who would otherwise be stateless are Belgian nationals. This meant that the children were therefore Belgian, and also – crucially- "citizens” of the European Union.

As citizens of the Union, the children were entitled to the benefits that go with that citizenship in accordance with Article 20 of the Treaty on the Functioning of the European Union.

In the Court’s view the children would be deprived of the enjoyment of these rights unless their parents were granted permits to reside and to work in Belgium.

What was particularly striking about the Court’s decision was that it was not based on the "free movement” rights of European Citizens and their family members, which since 2004 have been set out in the Citizens’ Directive ("Directive 2004/38/EC of the European Parliament and of the Council on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States").

The rights of residence in the European Union enjoyed by the family members of Union citizens which were conferred by the Citizens' Directive were, the Court emphasised in its judgment in McCarthy v Secretary of State for the Home Department, dependent upon the Union citizen’s having moved from one Member State to another. The Zambrano children had never left Belgium.

The Zambrano judgment - and its apparent implications for Member States of the European Union - were widely reported and attracted much comment. It’s unsurprising therefore that when the Dereci case came before the Court of Justice the Court considered submissions not just from the Austrian government but from seven other Member States, including the United Kingdom.

The Court noted that the substance of these submissions was that:

"the principles laid down in Ruiz Zambrano apply to very exceptional situations in which the application of a national measure would lead to the denial of the genuine enjoyment of the substance of the rights conferred by virtue of the status of citizen of the Union.”

The judgment turns on its facts. Those in the main applicant’s case were as follows: Mr Dereci entered Austria illegally and married an Austrian national. The couple had three children, all of whom were also Austrian nationals. Mr Dereci submitted that if he were not allowed to live in Austria the unity of his family would be jeopardised. He wouldn’t be able to maintain his family if he had to leave Austria.

Comparing Mr Dereci’s circumstances and those of the other applicants to those of the Zambrano children, the Court said:

"It follows that the criterion relating to the denial of the genuine enjoyment of the substance of the rights conferred by virtue of European Union citizen status refers to situations in which the Union citizen has, in fact, to leave not only the territory of the Member State of which he is a national but also the territory of the Union as a whole.”

No such prospect faced any of the applicants in the Dereci case. The fact that it might appear to be desirable to a national of a Member State for economic reasons to have his or her family living with him in that Member State:

"is not sufficient in itself to support the view that the Union citizen will be forced to leave Union territory if such a right is not granted.”

For that reason, the applications all failed. The Court was, however, careful to point out that it was not making any ruling as to the applicability either of Article 8 of the European Convention on Human Rights ("ECHR”) or of Article 7 of the Charter of Fundamental Rights of the European Union.

The Court noted that it was possible that the applications for residency must succeed if considered under either of these Articles, which protect family life. The Court, however, says that that question is not for itself but for the Austrian authorities because Article 7 of the Charter will only be engaged if the applications are covered by European Union law, as is made clear in the Charter’s Article 51 (2). If the Austrian authorities decide that the issue is not one which engages European Union law then it can consider the applicants’ positions under Article 8 of the ECHR.

All of which is puzzling to say the least since the consolidated version of the Treaty on the European Union says (at Article 6.3) that:

"Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law.”

- which means that human rights and the European Union’s law are inseparable.

The Zambrano and Dereci judgments are directly relevant to many cases decided in the UK under the Immigration (European Economic Area) Regulations 2006. The law is complex and anyone seeking to assert rights of residence in the UK for themselves or for their family members is strongly advised to seek professional legal advice.


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