Article by Naomh Gibson
On 30 January 2020 and having heard a number of test cases, Judge Neville of the First-tier Tribunal (IAC) at Taylor House ruled that a person meeting the requirements Regulation 16 of the Immigration (European Economic Area) Regulations 2016 (‘the 2016 Regulations’) has a derivative right of residence notwithstanding that he or she has not yet made an application under the Immigration Rules and pursuant to Article 8 ECHR. The upshot is that the novel concept set out in Home Office policy that a Zambrano carer must first make an unsuccessful fee-paid human rights application before an application under the 2016 Regulations can be submitted is unlawful.
Judge Neville also held that the EU Treaties do not demand an applicant be entitled to a permanent right of residence after living continuously in the UK for a period of five years as Zambrano carers. It was held that a Zambrano right of residence is impermanent by its very nature, and that once the compulsion to follow the third country national (‘TCN’) falls away, there is no basis upon which the British citizen is deprived of his rights under the EU Treaties by the TCN’s removal.
This second issue is the subject of an on-going appeal to the Upper Tribunal. The Secretary of State elected not to appeal the finding on the first issue. The indication from senior sources is that the policy will now be subject to amendment giving effect to the FtT’s ruling.
It came to attention of David Tang & Co solicitors that in several of their appeal cases there was a recurring issue, summarised in the appeal as follows:
Where the Secretary of State accepts:
- That the appellant is the primary carer for a British citizen child; and
- That the child would not be able to remain in the United Kingdom or another EEA member state if the appellant were required to leave the United Kingdom for an indefinite period…
Is it in breach of the appellant’s rights under the EU Treaties in respect of entry to or residence in the United Kingdom for an application for a residence card under Reg. 20 of the 2016 Regulations to be refused because the appellant has not yet made an application for leave to remain under the Immigration Rules (or otherwise pursuant to Article 8 ECHR) on the basis of the relationship with the British citizen child? (Issue 1)
Exceptionally, exercising its general case management powers, the FtT agreed to consider this issue discretely as a preliminary issue.
The FtT also agreed to decide on a second matter as a preliminary issue, namely:
Where an appellant has spent five years living continuously in the UK with a derivative right of residence, have they acquired a permanent right of residence akin to that set out at Reg. 15 of the 2016 Regulations? (Issue 2)
It was common ground that each appellant was not an exempt person as defined by Reg. 10(7A) of the 2016 Regulations and met each of the criteria at Reg. 10(5). However, the applications for derivative residence cards were refused by the Home Office, on the basis that there is significant overlap with the right to respect for private and family life which is protected by Article 8 ECHR, and so an appellant who wishes to remain in the UK on the basis of family life with a British citizen ought to first make an application for leave to remain under Appendix FM to the Immigration Rules.
The Secretary of State reasoned that a derivative right to reside is a right of last resort which only applies if a person has no other means to remain lawfully in the UK. In doing so, she sought to gain assistance from the Court of Appeal judgment in Patel v SSHD  EWCA Civ 2028).
This would mean 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;
- has been refused under Appendix FM or Article 8 ECHR but their circumstances have changed since the decision was made – for example, the applicant applied on the basis of their relationship with a British spouse, but the couple now have a British child.
Further, the Secretary of State also argued that someone holding leave to remain under domestic law would not benefit from a derivative right to reside. She sourced the above principles from Patel. The FtT rejected this contention and held that the Respondent’s interpretation ‘cannot survive the actual legal principles engaged nor, in any event, would her interpretation of the law provide a sound basis for the requirement imposed by the guidance’ .
The FtT agreed that Patel, properly read, offers no support for either proposition. The judge ruled that the Respondent’s guidance contained legal principles which were ‘unsupported by, and in some cases completely at odds with, previous authority’ .
This is because Zambrano is concerned with the circumstances in which a TCN will have a right of residence under EU law, and in particular Article 20 of the Treaty on the Functioning of the European Union (‘TFEU’):
- 1. Citizenship of the Union is hereby established. Every person holding the nationality of a member state shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.
- 2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:
a) the right to move and reside freely within the territory of the member states; …
Therefore, the obligation and the jurisdiction to grant residence follows Art.20.There was thus a distinct separation between EU law, and other provisions such as the ECHR, to form ‘two sources of protection’ . In the learned judge’s opinion, the correct approach to take in determining Issue 1 was as follows:-
- Is there a derivative right of residence as defined by Zambrano? If not;
- Would removal be contrary to the right for respect for the TCN’s family and private life afforded by Article 8 ECHR?
As such, the Respondent’s guidance (and their application of their guidance) erred in law as it is predicated on testing whether the TCN is being compelled to leave the EU, rather than testing what would happen if he or she were so compelled.
Some of the appellants argued that after living continuously in the UK for 5 years pursuant to a Zambrano right of residence, they had automatically acquired a right of permanent residence – contrary to the current regulations – on the basis of EU Treaties. This was a novel proposition which had not been directly explored in any previous authority.
This proposition was based on Article 21(1) TFEU, which provides:
“Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.”
As per Lounes (Citizenship of the Union : Border checks : Judgment)  EUECJ C165/16, , it was argued that it would be contrary to the underlying logic of gradual integration that informs Article 21(1) TFEU to hold that such citizens, who have acquired rights under that provision as a result of having exercised their freedom of movement, must forego those rights –– in particular the right to family life in the host Member State –– because they have sought, by becoming naturalised in that Member State, to become more deeply integrated in the society of that State.
It was submitted on behalf of the appellants that this ought to include the ability to build a family life with a TCN partner by the means of a derived right of residence to that spouse.
However, the FtT did not accept this part of the appellants’ case. While it was accepted that there was ‘some force’ in these arguments , there was no authority explicitly providing for the Directive to be applied ‘by analogy’ to Zambrano carers.
Ultimately, the appellants faced an insurmountable hurdle in that entitlement to a permanent right of residence by the TCN does nothing to fulfil the objectives of the TFEU; refusing to provide a right of permanent residence to a Zambrano carer after five years’ continuous residence as such does nothing to “[deprive a] Union citizens of the genuine enjoyment of the substance of the rights conferred by virtue of their status” nor “interfere, in particular, with a Union citizen’s freedom of movement”.
An example was given of a TCN who is the sole primary carer of a British citizen child who would be compelled to follow her outside the EU if she were removed. If this TCN was given leave in another Member State, then the Secretary of State could justifiably argue that the Zambrano right falls away as the UK would not be interfering with the child’s enjoyment of EU citizenship.
This is welcome clarification on the correct application of the Zambrano principle and the circumstances in which an appellant has a derivative right of residence. For those currently handling cases which engage these principles, please note that at the time of writing, the Home Office has yet to update their guidance.
The current document ‘Free movement rights: derivative rights of residence’ version 5.0 dated 2 May 2019 still requires to be updated (see here). Page 52 of 63 of the Guidance still erroneously states: Where a person wishes to remain in the UK on the basis of family life with a British citizen, they should first make an application for leave to remain under Appendix FM to the Immigration Rules, not for a derivative residence card on the basis of Zambrano.
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