In March 2011 the Court if Justice of the European Union delivered its judgment in the case of Zambrano v Office National de l’emploi ( in Belgium) . This was a landmark decision that has had a positive effect so far in applications made by non EU National Parents who have British Children. This post is to explain the background of the case and to examine the results that we have had on a practical level.
The Zambrano couple were Colombian nationals. Their applications for asylum were rejected and they were ordered to return to Colombia – the order however contained a non-refoulement clause. This stated that they should not actually be sent back to Colombia because of the civil war.
As the Zambrano couple had no status, Ruiz Zambrano sought to regularise their stay. Those applications were unsuccessful. Ruiz Zambrano had previously worked, but his employment contract was subsequently terminated – he was told he had no entitlement to work as he had no work permit. He was also subsequently refused unemployment benefit because of his irregular status.
The Zambrano couple had two children who were both born in Belgium, and had therefore acquired Belgian nationality. They had however never lived outside of Belgium and never exercised their freedom of movement. Ruiz Zambrano sought to rely on a derived right of residence as the ascendant of minor children who are nationals of a Member State according to the Zhu and Chen case.
The refusal to give a right of residence to a third country national (TCN) with dependent minor children in the Member State where those children are nationals, together with the refusal to grant a work permits to enable TCN parents to work to support children, has the effect of depriving citizens of the Union genuine enjoyment of their citizenship rights under Article 20 of TEFU.
The rights of Zambrano children who are EU citizens comes directly from Article 20 TEFU (citizenship of the Union); Those rights include:
• The right to live in Belgium (para 40 and 41)
• The right of residence for their third country parents (both of them it would seem) to live in Belgium with them as this is necessary for the children who are EU citizens to enjoy their rights as citizens of the Union (para 42 and 43)
• The right to a work permit for the third country national parents to support the children (as otherwise they might all have to leave the state on grounds of penuary) (para 44).
A recent case that RBM Solicitors have dealt with involved a Zimbabwean National who was a failed asylum seeker who had exhausted all appeal rights and made three fresh claims that have been refused . Since the refusal of the further submissions she had a child with a Nigerian National who has Indefinite Leave to Remain. The couple were not married or living together. RBM Solicitors submitted further submissions on the basis of the case of Zambrano and ZH Tanzania. Our client was granted discretionary leave to remain in the UK.
In a similar case an overstayer from Malawi had two children with a British woman. He had contact with the children but was not living with the children. RBM Solicitors were able to successfully apply for discretionary leave to remain in the UK on behalf of the applicant.
It is worth noting that a child who was born in the UK can attain British Citizenship when their parent or parents have been granted Indefinite Leave to Remain in the UK. A Child who is born in the UK and is aged 10 years or over can be registered as a British Citizen. It is not within the scope of this post to discuss the various ways of naturalising as a British Citizen. More information on this issue is available on the UKBA website.
This decision is a positive one and the positive effects are being seen in some decisions that the Secretary of State is making however there may arise a situation where both the UK Government and other European governments may well respond – particularly in the current economic climate – by tightening requirements for settlement and citizenship in order to minimise the potential effects of the judgment.
It is important that those parents/families who fall with the terms of the above judgment who have been removed/constructively removed e.g. through an absence of welfare/work entitlements, or refused residence should seek legal advice.
Post published in: Africa News