McCarthy versus Zambrano


In the ground breaking case of Zambrano, two Columbian nationals were allowed to live and work in Belgium in order to facilitate their Belgian national children living in Belgium. The case was a clear endorsement of the importance of EU citizenship. It accepted that the parents ought to be allowed to remain to prevent an interference with their children’s EU rights. This was even though the relevant children had never left Belgium and thus, had not exercised treaty rights, the traditional route to allow EU nationals, and particularly their third country national family members, to rely on such rights.

The relevant EU national in the case of McCarthy was a dual Irish/British national born in the UK who had never worked or been self employed in the UK or anywhere else in the EU and relied on State Benefits. She was married to a Jamaican national with no leave to remain in the UK. They had applied for a residence permit for him on the basis of his status as the spouse of an EU national. Heard shortly after Zambrano, it dealt with similar issues. Contrary to the decision in Zambrano, the Court found that Ms McCarthy and her spouse could not rely on EU law as she had never exercised a right of free movement, having not lived elsewhere in Europe. Following this decision, it is important to consider both cases and their decisions and attempt to reconcile or to differentiate them so as to determine the future of this area of law.

Zambrano has clearly opened the door to a number of new grounds for demonstrating residence rights in cases where EU law may not have previously played a role. In addition to the immediate, practical consequences for immigration solicitors, the case suggested that we may be seeing the start of a new and potentially fast developing area of immigration law.

Zambrano is undoubtedly an important landmark in the evolving area of EU Citizenship. Arguably, the most important feature of the case was that it was not a barrier to residence rights based on EU law that the Zambrano children had not previously resided in other EU states or moved between them. Their ability to remain in Belgium, and to confer on their parents the derived right of residence was entirely attributable to their EU citizenship, and the need to protect the rights that Union citizenship confers. In this case, the protection extended to protect a potential future exercise of Treaty rights, quite a leap from previous precedent. This factor marks out the case as significant.

The approach taken in this respect contrasts strongly with McCarthy. At first glance McCarthy and the specific provisions in the Judgment of the Court suggests that the impact of Zambrano may be limited. In Zambrano, as the relevant EU citizens were children, it was clear that, in the absence of according some right of residence to their parents, they would practically have to leave the EU to live in Columbia, and thus, were arguably being denied the rights accorded to them by virtue of their EU citizenship. On the other hand, Ms McCarthy was not dependant on her non-EU spouse to remain in the UK, as an adult. However, the practical consequences for Ms McCarthy could be similar to Zambrano in that she is unlikely to wish to be separated from her third country national spouse and that may mean she returns to his country of origin, leaving the territory of the EU in the process. The distinction, therefore, is one that the ECJ have chosen to draw, rather then one clearly visible.

The impact of these cases right now is already being seen. The Irish Times reported earlier this month, that on the heels of Zambrano, more than 1000 people had applied for residency in Ireland on the basis of an Irish national child and of the 135 applications reviewed by the Irish immigration authorities so far, all had been successful in light of this case. In our own practice, we are relying on this case in any case featuring British children, adding to the arguments advanced in the judgement regarding domestic law and children in the Supreme Court case of ZH (Tanzania) earlier in the year. For the current time, the importance of Zambrano in cases involving children cannot be underestimated.

What remains to be seen is in the interpretation of these two, especially in the context of adults, seemingly opposite judgements, which will define the future of EU citizenship and the associated rights for citizens and which will be confined to its specific facts? The answer will shape the future of EU law and in turn, may, if Zambrano sets the future tone, radically change the options open to British nationals and their third country national family members. Watch this space!

Zambrano Children

Since the Court of Justice of the European Union decision in the case of Zambrano in 2011 the case of Zambrano became known as the “Zambrano principle”. Some member states have argued that so long as there is a parent who is a citizen of the state, that parent should take care of the child so that the third country national parent can be expelled. Even if the citizen parent does not want to take care of the child, then the consequences may be that the child goes into social care. Some immigration authorities have considered this to be acceptable in order to be able to expel the third country national parent. The legal battle has taken place around the correct interpretation of the Court’s phrase “genuine enjoyment of the substance of the right of European citizenship”. Now the Court has handed down a judgement clarifying just how far immigration authorities can go in trying to expel the non EU parent before they interfere with the genuine enjoyment of the substance of the children’s citizenship rights. The name of the case that determined it is Chavez-Vilchez. Eight joined cases were referred to the CJEU by the Dutch Court. Seven member states intervened and in all of the cases a third country national woman had a child in the Netherlands, fathered by a Dutch man and thus the children were born Dutch. In all the cases the children lived with the mother but had some contact with their father, except for one. All have been recognised by the fathers as their children. The mothers all applied for Child Benefits and Social Benefits assistance on account of their lack of resources. In all cases the applications were rejected on the grounds that the mothers had no right of residence in the Netherlands which meant no rights to Social Benefits.

They appealed and eventually the matter was referred to the CJEU to discover whether these women were entitled to reside in the Netherlands as mothers of Dutch minor children and so become eligible for Social Benefits.

The outcome of this case is twofold. First, the Court forced the Immigration Authorities to undertake a case by case examination of the situation of each family before it could reach any decision about whether the third country national mother can be expelled. The mere fact that the other parent of the child happens to be on the scene is not sufficient in itself to justify the foreign mother’s expulsion. The key is the relationship of dependency of the child on the third country national mother. If this relationship is sufficiently strong that the child would leave the EU if the mother was expelled, then the Immigration authorities must not expel the mother. Further, the assessment of the dependency must be on the basis of the principle of the “best interests of the child.” The reason the third country national mother would be expelled and that the children might leave with her, is sufficient to place an obstacle in the way of expulsion. The Court held that the relevant factor to be considered was whether the child is legally, financially and emotionally dependent on the third country national parent, not whether the other parent was alive and in the state. The key question is that of dependency of the child on the third country national parents, because it is that relationship of dependency which creates the risk that the child might leave the EU if the mother was expelled. In order to assess that risk the Court instruct the authorities to consider which parent is the primary carer of the child and has to take into account the right to respect for family life and the best interests of the child.

The second outcome is that the Court had to find on whom lies the burden of proof that the child needs it third country national parent or not. The Dutch authorities argued that it was for the third country national to establish this dependency relationship with the child to the satisfaction of the state authorities. The CJEU only partially agreed with this position. It held that it is for the third country national to provide evidence on which an assessment can be made regarding the relationship with the third country national parent and the child, but the burden of proof on the family must not be such as to undermine the effectiveness of the child’s EU citizenship rights.

The burden of proof does not relieve the authorities of their obligation to undertake the necessary inquiries as to where the EU citizen parent actually resides and whether that parent is or is not actually able and willing to assume sole responsibility for the primary day to day care of the child. This is a good decision because the Court recognised the children’s best interests come first and their dependence on one or other parent is the key to their well-being.