In December 2012, the UK Court of Appeal, in Harrison, considered the decision of the Court of Justice of the European Union (CJEU) in Zambrano. The UK Court looked at the subsequent decisions of McCarthy, Dereci and Iida which clarified Zambrano and went on to provide a summary of the law as it now stands.
Bulletin readers will recall that in Zambrano, the CJEU ruled that non-EU parents of an EU citizen child have a right to live and work in that EU state, ensuring that the child can benefit from their rights as an EU citizen.
The appellants were non-EEA family members of EU citizens who had committed serious criminal offences. They challenged their deportation on grounds that they came under the principle enunciated in Zambrano.
The Zambrano test requires a Court to consider whether as a matter of reality the EU citizen would be obliged to leave the territory of the EU if the non-EU national were to be removed from the EU.
The Court of Appeal held that Zambrano could not be extended to a situation where an EU citizen would not technically be compelled to leave the country if the non-EU family member were refused a right of residence. The fact that their continuing residence in the EU is affected in some sense, for example their quality of life is diminished, is not sufficient to engage EU law (under the Zambrano principle).
Hence, the current position in the UK requires that for a person to fall under the Zambrano principle, the EU citizen will be forced to leave the country of residence (such as where the sole carer or both parents of an EU citizen child face removal). However, where there is an element of choice in whether the EU citizen leaves, such a situation will fail.
The judgment mirrors the UK Border Agency’s interpretation of Zambrano as incorporated into the Immigration (EEA) Regulations 2006