A Complete Guide to The Zambrano Principle and Derivative Right of Residence Under EEA Regulations
In 2011 the European Court of Justice (ECJ), decided on a case which would have profound consequences for non-EU nationals who are parents or caregivers of EU citizens. The case of Gerardo Ruiz Zambrano v Office national de l'emploi (ONEm) C-34/0, gave rise to what is known as the ‘Zambrano Principle’ or the ‘Zambrano Right to Reside’ which is still causing headaches for the Home Office to this day.
The Zambrano principle in a nutshell
The Zambrano principle can be stated as follows:
If a child of non-EU nationals is granted citizenship in an EU country, then the parents of that child have the right to reside within the EU and do not require work permits. Not granting these rights to the parents would be depriving the child of the genuine enjoyment of their citizenship rights under Article 20 of Treaty on the Functioning of the European Union (TFEU).
Article 20 states:
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;
b) the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections in their Member State of residence, under the same conditions as nationals of that State;
c) the right to enjoy, in the territory of a third country in which the Member State of which they are nationals is not represented, the protection of the diplomatic and consular authorities of any Member State on the same conditions as the nationals of that State;
d) the right to petition the European Parliament, to apply to the European Ombudsman, and to address the institutions and advisory bodies of the Union in any of the Treaty languages and to obtain a reply in the same language.
Therefore, a British Citizen who is living in the UK and has never exercised their right of free movement, who is dependent on a third-country national, can utilise the Zambrano principle and argue that the third-country national is entitled to live and work in the UK, because if they cannot, then they themselves are denied their rights as an EU citizen.
The UK Border Agency’s reaction to the Zambrano decision
The UKBA created a holding position which allowed applicants who met the provisional criteria of the Zambrano principle to obtain the right to work and non-removal status. However, no formal Immigration status was granted until the ruling was incorporated into legislation.
In November 2012, the Zambrano principle was finally incorporated into UK regulations when the Immigration (European Economic Area) (Amendment) (No. 2) Regulations 2012 came into force.
The UKBA criteria for interpreting how the Zambrano principle would apply was inserted in paragraph 15A, new sub paragraph (4A) which reads as follows:
a) The applicant must be the primary carer of a British citizen
b) That British citizen must be residing in the United Kingdom; and
c) That British citizen would be unable to reside in the UK or in another EEA State if the applicant were required to leave.
Recent case law
The decision handed down in Zambrano has led to many judgements, both from the ECJ and domestic courts, as the legal profession grapples with the breadth of its application.
Recent English court decisions include:
McCarthy v Secretary of State for the Home Department  All ER (EC) 729
In McCarthy, the applicant was both a national of the United Kingdom and Ireland; however, she had always lived in the United Kingdom and was on state benefits. She obtained an Irish passport following her marriage. She and her husband (who was a Jamaican citizen) applied for a residence permit and were refused. She advanced her claim under the Citizens' Directive 2004/38. The Court held that this was inapplicable since she had never exercised any right of free movement and had always resided in the Member State of which she was a national. The fact that she was also a national of another Member State was immaterial.
The Court recognised that Zambrano in certain circumstances protected an EU citizen's right of residence even where no freedom of movement right had been exercised. However, just because her husband was denied a residents permit, there was nothing depriving the applicant of enjoyment of her rights as an EU citizen; she was not obliged to follow her husband and there was nothing which impeded the exercise of her right to move and reside freely within the territory of the Member States. This was a purely internal matter with no factor linking the situation with EU law. It is to be noted that disruption of family life was not sufficient to engage EU law.
Harrison (Jamaica) v Secretary of State for the Home Department  EWCA Civ 1736
The question for the Court of Appeal to decide on in this case was, ‘could Zambrano principles apply if a person is not forced to follow a non-EU national out of the EU (ie they are not a dependent on the third-party national), but the quality of their continuing residence in the EU would be diminished if the third-party national was forced to leave.
The Court of Appeal agreed with the Secretary of State’s interpretation of Zambrano that nothing short of a mandatory departure would satisfy the test. However, Lord Justice Elias did acknowledge that EU law may develop further and the test could be widened.
Sanneh & Ors v Secretary of State for Work and Pensions and Others  EWCA Civ 49
In this case the Court was asked to consider the position of Zambrano carers who required access to public funds. The judges ruled that member states must make social assistance available to Zambrano carers when it is essential to do so. However, this can take the form of ‘basic support’, as provided by section 17 of the Children Act 1989. The Court stated that Zambrano carers are not automatically entitled to the same level of support as an EU citizen.
Ayinde and Thinjom (Carers – Reg.15A – Zambrano)  UKUT 560 (IAC)
This case involved two appellants who were denied derivative residence cards, who were both carers for elderly dependent adults.
In each case, the First-tier Tribunal Judge allowed the Appellants’ appeals stating it would not be reasonable to require the respective appellants to leave the United Kingdom.
The Secretary of State appealed to the Upper Tribunal, arguing that existing case law made it clear that the Zambrano principle only applies when a Union citizen will, as a matter of fact, be forced to leave the Union. The Secretary of state argued that principle does not apply where that is not the case, even if the quality of life of the Union citizen would be substantially diminished as the result of the primary carer’s departure.
The Upper Tribunal agreed, stating that the care provided by local authorities and care workers was perfectly acceptable for dependent adults who required care and that applying a reasonableness test distorted the principles of the Zambrano decision. The Judges also concluded that there was a considerable difference between a child being separated from its parents and a fully grown adult being separated from a carer. Although there are state options available to care for a child such as foster homes and adoption, these would only be contemplated in cases where the parent/child relationship had broken down. However, an elderly adult could survive in a care or nursing home, and although it could be argued that their quality of life may diminish, due to their carer having to leave the country, this was not enough to satisfy the criteria in Zambrano.
More debate to come
The full scope of the Zambrano principle is far from settled and we are likely to see more cases come out of the UK and EU courts in the future.
If you wish to talk to us about your situation, please phone our London office on 0203 959 9123 to make an appointment with one of our Immigration specialists.