Tag Archives: zambrano

Applying for an EEA Family Permit on the basis of Zambrano

As outlined previously a number of times there is a possibility for an applicant to gain a right of admission to the United Kingdom on the basis of Zambrano.  The applicant can submit a free of charge application for an entry clearance visa known as an EEA Family Permit.

The Home Office responded to my previous What Do They Know request regarding a derivative right of entry to the UK stating:

A person who meets the conditions of regulation 15A(4A) of the Immigration (European Economic Area) Regulations 2006 (as amended) has a ‘derivative right of residence’ and is entitled to reside in the UK for as long as they continue to meet the conditions of that regulation. Regulation 18A provides for persons with a derivative right of residence to be issued with a derivative residence card confirming that right. A person who is outside the UK but who would meet the conditions for a derivative residence card if they and the person from whom they derive a right were in the UK, can apply for an EEA family permit to facilitate their entry to the UK. An EEA family permit is not mandatory. The absence of an EEA family permit or other document confirming a right of residence may, however, present difficulties for a person in satisfying the relevant carrier that they may transport the passenger to the UK without incurring penalties. It is therefore advisable for such persons to obtain an EEA family permit prior to travelling to the UK.

They infact then went on to expand this stating:

Where a person with a derivative right of residence who does not have a derivative residence card or an EEA family permit seeks admission at port, regulation 11(4) provides for them to evidence to the Immigration Officer that they have a right of admission as a person with a derivative right of residence. In these circumstances, the person would need to present evidence that they meet the conditions set out in the relevant paragraph of regulation 15A (for Zambrano cases, this is 15A(4A) ).

An applicant would need to provide evidence that:

  • they are the primary carer of a British citizen (“the relevant British citizen”);
  • the relevant British citizen is residing in the United Kingdom; and
  • the relevant British citizen would be unable to reside in the UK or in another EEA state if the primary carer was required to leave.
  • They will also need to provide evidence to demonstrate that they meet the definition of ‘primary carer’ as set out in regulation 15A(7), (7A), (7B) and (8) of the EEA Regulations 2006.

Although Section 55 of the Borders, Citizenship and Immigration Act 2009 only ‘technically’ applies to children within the United Kingdom, the Home Office guidance and recent caselaw has emphasised the need for the act to be read in light of the way it was meant – and therefore be applied to consider the best interest’s of a child concerned within the application in any case (whether within, or outside of the UK).

For this reason, also include a detailed covering letter outlining the best interest’s of the child concerned, and why it is not in their best interest’s to be separated from yourself.  Also remember to include your detailed Human Rights Submission – outlining the need to consider not only your own human right’s, but those of the British Citizen child.

Any refusal for an EEA Family Permit should be accompanied with a right of appeal.

 

Completing your application on the case of Zambrano

As outlined previously on this blog, the primary carers of a British Child can apply for a residence card on the basis of Zambrano to live in the UK under regulation 15A of the EEA Regulations 2006.

The Home Office expects applications to be made on form DRF1.  You can also complete form EEA2. Alternatively, you can make your application in the form of a written letter.  Please note: There is now a fee of £55 for an application for a Derivative Residence Card – This fee is payable whether or not you apply using the forms above.

I personally recommend completing both form’s and attaching a very detailed covering letter outlining your human rights claim, specifically spelling out the best interests of your child (including the fact that it is in your child’s best interests to be with both of his/her parents), in addition to linking to specific case law.

Following a recent Letter to Mark Harper MP on new Family Migration Rules from the Children’s Commissioner for England (Maggie Atkinson), a lot of flaws with the governments current immigration proceedures have been highlighted.

I refer to the Human Rights Submission that was sent along with my wife’s application that you could use as a starting point.  There is also a vast amount of legislation such as the UNCRC, Article 24, Article 20 TFEU, Zambrano, and many other cases.  It is down to the applicant to specifically spell out how the best interest’s of a child might be affected.  This could be for example:

  • the poor education system in the country of origin of the primary carer,
  • the fact that the Primary Carer is breast feeding
  • the policitcal / cival / war stricken country state etc
  • the emotional dependancy of the child on the primary carers
  • and so on.

No matter how “silly and obvious” it appears to be, ensure that you include it in your application.

Now, before proceeding, I need to point out: If one of the child’s parents are British, then the application is doomed to fail from the start.  The Home Office reads the Zambrano Ruling as  so long as one parent is living with the child, then they would not be forced to live outside of the EEA.  This is in clear contradiction to their own Zambrano/Human Rights guidance.  You would therefore be required to appeal any refusal notice via the courts.

Not only do you need to complete the form, you are also required to provide

  • proof of your own identity (Passport, Home Office Document [IE: IS96 ETC])
  • proof of relationship to the dependant (Birth Certificate)
  • proof that the dependant is a British citizen (Passport?)

The rest of the documents that you provide will be in the form of providing proof that the child is infact dependant on you, and that you are in fact the primary carer of that child.  This may well be things like:

  • Tax credit letters
  • proof that you live together
  • Letters addressed to yourself from your child’s school
  • Letters from the child’s doctor, dentist, hospital addressed to yourself
  • Letters from the GP, Social Services and other government bodies outlining that you are the primary carer.

Once your application is filed, you can expect to receive a Certificate of Application (COA) in the post.  This process could take anything from a few days to a number of weeks.  You may need to to chase it up.

This COA should confirm the applicants right to reside and work within the host member state (The UK).  Using this COA you can apply to the DWP for your National Insurance Number.

But alas: What if your not actually in the UK?  In that case, it appears that you would need to apply for an EEA Family Permit on the basis of Zambrano.

Don’t forget about your appeal rights with regards to an EEA decision.

The misery of injustice. | ASIRT blog

As promised, we helped Eloise to submit an appeal against this decision. Which is where the situation went from bad to worse.While the Ministry of Justice’s Tribunal Service’s guidance specifically states that appellants in receipt of financial support under section 17 of the Children Act- as Eloise and Tanya are, having no recourse to public funds- the Tribunal service returned Eloise’s appeal to us in August, some 2 months after we initially submitted, claiming that the appeal was invalid as not accompanied by a fee of £140.We resubmitted the appeal, once again noting that appellants in receipt of section 17 support are exempt from fee payment, only to receive a telephone call a couple of days later from a Tribunals Service employee reiterating the claim that the exemption does not apply to Eloise since the section 17 support is for her daughter, rather than herself. This actually is not the Local Authority’s position, since Eloise actually receives a subsistence allowance set at £70 – £35 per person- each week. But even if this was not the case, it is patently absurd to argue that Tanya’s interests in terms of this appeal, at the age of 2, are in any way distinguishable from her mother’s.

via The misery of injustice. | ASIRT blog.

Case C-34/09 – Ruiz Zambrano

Outline of the ruling on Zambrano

In the case of Ruiz Zambrano (Case C-34/09 of the European Court of Judgement (ECJ) http://www.bailii.org/eu/cases/EUECJ/2011/C3409.html), the court made the following ruling:

Article 20 TFEU is to be interpreted as meaning that it precludes a Member State from refusing a third country national upon whom his minor children, who are European Union citizens, are dependent, a right of residence in the Member State of residence and nationality of those children, and from refusing to grant a work permit to that third country national, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen.

Note that there are numerous articles to be found on Google in relation to this case. I list a few of the webpages here:

But there are many more interesting reads out there…

In addition to the above, The Home Office have a very clear responsibility to safeguard and promote the welfare of children under Section 55 – Borders, Citizenship and Immigration Act 2009. This guidance is laid out well in their Statutory guidance to the UK Border Agency (UKBA), which also refers to The Home Office: Every Child Matters.

Zambrano IDI’s and Article 8 Guidance

I’d like to also raise the following UN Law: UNCRC – United Nations Convention on the Rights of the Child

And the consolidated clearer version in EU law:
Article 24 TFEU: The Rights of the Child.

COMMENTARY OF THE CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION

Article 24. The *rights* of the child
1. Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.

2. In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.

3. Every child shall have the right right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests. (Emphasis added)

Weighing this in line with the very clear Zambrano / Article 8 IDI’s. The Home Office Derivative Right’s guidance notice can be viewed here on my FOI request Derivative right of residence – take note that there are a number of files released on this request.