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Court of Appeal grapples with Zambrano

Written by Colin Yeo, Free Movement, 17 January 2013

The decision of the Court of Justice of the European Union in Zambrano requires a lot of explaining. The process of seeking to understand its impact will continue for some time at an EU level and domestically. In Harrison (Jamaica) v Secretary of State for the Home Department [2012] EWCA Civ 1736 the Court of Appeal has now had a stab.

The judgment explores the Advocate General and Court decisions in Zambrano, McCarthy, Dereci and Iida at paragraphs 12 to 30 and is an invaluable and highly recommended summary of where we are now.

The parties agreed that the application of the Zambrano test requires a court to focus on the question whether as a matter of reality the EU citizen would be obliged to give up residence in the EU if the non EU national were to be removed from the EU. Where the parties disagreed was over whether the Zambrano principle can apply where an EU citizen is not forced, as a matter of substance, to follow the non EU national out of the EU, but where their continuing residence in the EU is affected in some sense because, for example, the quality of life is diminished. The Secretary of State maintained that the case law indicates that nothing short of forcing departure will satisfy the Zambrano test and the appellants argued that diminution in quality of life by deprivation of a parent would suffice.

Lord Justice Elias gives the leading judgment and prefers the arguments of the Secretary of State while recognising that EU law may develop to give greater protection to a citizen's right of residence than it does at present.

The current position therefore seems to be that a situation in which the EU citizen will be forced to leave the country of residence will succeed under Zambrano (such as where the sole carer or both parents of an EU citizen child face removal) but where there is an element of choice in whether the EU citizen leaves such a situation will fail. In short, the Court of Appeal largely upholds the Home Office interpretation of Zambrano as incorporated into the Immigration (EEA) Regulations 2006.

Arguments that remain outstanding include:

1. Whether the Court of Appeal is right in Harrison on Zambrano only applying in cases of forced departure.

2. Whether Zambrano only applies to a citizen of the country of residence, e.g. a British child resident in the UK, or whether it extends to a citizen of one EU country resident in another, e.g. an Irish child resident in the UK.

3. Whether Zambrano provides an absolute right of residence for the EU citizen where he or she will be forced to leave even if there are public policy reasons in favour of the EU citizen's departure, such as a parent having committed criminal offences.

All three of these issues will be the subject of further litigation, no doubt.

This blog post originally appeared on the Free Movement blog and is reproduced with our thanks to Colin Yeo.

Any views expressed are those of the author and do not necessarily represent the views of EIN