Act: Caskie; McGill & Co

Alt: McIver, Office of the Advocate General for Scotland

12 March 2013

[1] The petitioner is a Chinese citizen who arrived in the United Kingdom in December 1998. She had been granted leave to enter the United Kingdom as a student. This leave allowed her to remain in the United Kingdom until 30 June 2005. In August 2003 the petitioner married P who had arrived in the United Kingdom in 1998 without a valid passport or leave to enter. The petitioner and her husband have two children, M born 19 October 2003 and Z born 17 September 2007.

[2] In May 2007 the petitioner applied to the UK Border Agency for a residence card. This application was refused by letter dated 27 September 2011. The present proceedings seek reduction of that decision. They also seek a declarator that the petitioner has the right to reside and work in the United Kingdom.

[3] The petitioner's son M was born in Coleraine, Northern Ireland and, as such, he is a citizen of the Irish Republic and, therefore, is a citizen of the European Union, because the Republic of Ireland recognises persons born on the island of Ireland, including Northern Ireland, to be citizens of the Republic of Ireland. It was accepted, on behalf of the petitioner, that, notwithstanding the declarator sought, neither the petitioner, nor her husband, have themselves rights of residence in the United Kingdom. It is important also to note that it was not contended that either of the two children have acquired United Kingdom nationality. It is not contended that either child has dual nationality. The basis of the petitioner's contention that she is entitled to a residence card is that her son has a "de facto" right of residence in the United Kingdom as a citizen of the Republic of Ireland. It will be necessary to look more closely as to the meaning and effect of that contention but it is the foundation upon which the petitioner's case is built. That case is thereafter developed, under reference to a decision of the European Court of Justice in the case Ruiz Zambrano v Office National de L'Emploi (OMEM) [2011] 2 MLR 1197. The European Court of Justice in that case held that 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 EU 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 attached to the status of European Union citizens".

Before the Lord Ordinary, in these proceedings, it was argued that the decision in Zambrano could and should be read to cover the status of the petitioner in this case. The Lord Ordinary held, for the reasons set out in his opinion, that the Zambrano judgment did not confer on the petitioner a right of residence in the United Kingdom. He dismissed the petition. The petitioner has reclaimed.

[4] At a procedural hearing, in the course of the reclaiming motion procedure, the petitioner sought to have this court make a reference to the European Court of Justice for a preliminary ruling on whether the judgment in Zambrano fell to be considered as covering her situation with the effect that the respondent's refusal to grant her a residence card was illegal, having regard to the provisions of article 20 TFEU. The court, at the procedural hearing, ordered that that application for a reference should be considered by a bench of three judges which is how the matter comes before us.

[5] It is not contended on behalf of the petitioner that her son M is, or will be in the foreseeable future, financially independent, or has sufficient funds to prevent him being a burden on the public funds of the United Kingdom. He has resided in Scotland since at least 2004. He has clearly not yet sought to exercise his rights of freedom of movement as an EU citizen. The petitioner's position, in those circumstances, is to accept that the decision in Zambrano appears to have imposed a qualification which did not apply in the present case. The qualification was that the right of residence recognised as adhering to the parent of the child in question is a right of residence in the member state which was both the country of residence and nationality of the dependent child. It was accepted, on behalf of the petitioner, that the United Kingdom is not the state of residence and nationality of her son M. But, it was argued, that that should not, necessarily, be an obstacle to a right of residence being conferred on the reclaimer. It had to be accepted, however, that the matter was not yet clear, having regard to the formulation of matters by the ECJ in Zambrano. It was, accordingly, appropriate to seek the guidance of the European Court of Justice. As will be seen, the position of the petitioner has to be considered not only having regard to the decision in Zambrano but other decisions of the European Court of Justice in this branch of European Union law. But first it is appropriate to have regard to the Zambrano decision in a little detail. At paragraphs 40-44 the court provided its reasons for the finding it made as is set out above. They did so in the following terms:

"4. Article 20 TFEU confers the status of citizens of the Union on every person holding the nationality of a Member State. (see, inter alia, D'Hoop v Office National de L'Emploi (C-224/98) [2002] ECR 1-6191; [2002] 3 CMLR 12 at [27] and Garcia Avello v Belgium (C-148/02) [2003] ECR I-11613; [2004] 1 CMLR 1 at [21]). Since Mr Ruiz Zambrano's second and third children possess Belgian nationality and the conditions for the acquisition of which it is for the member state in question to lay down (see, to that effect, inter alia Rottmann v Freistaat Bayern C-135/08) [2010] 3 CMLR 2 at [39]), they undeniably enjoy that status (see, to that effect, Garcia Avello [2004] 1 CMLR 1 at [21] and Chen [2004] 3 CMLR 48 at [20]).

As the Court has stated several times, citizenship of the Union is intended to be the fundamental status of nationals of the Member State (see, inter alia, Grzelczyk v Centre Public D'Aide Sociale d'Ottignies Louvain la Neuve (C-184/99) [2001] ECR 1-6193; [2002] 1 CMLR 19 at [31]; Baumbast v Secretary of State for the Home Department (C-413/99) [2002] ECR 1-7091; [2002] 3 CMLR 23 at [82]; Garcia Avello [2004] 1 CMLR 1 at [22]; Chen [2004] 3 CMLR 48 at [25]; and Rottmann [2010] 3 CMLR 2 at [43]).

In those circumstances, Article 20 TFEU precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union (see, to that effect, Rottmann [2010] 3 CMLR 2 at [42]).

A refusal to grant a right of residence to a third country national with dependent minor children in the Member State where those children are nationals and reside, and also a refusal to grant such a person a work permit, has such an effect.

It must be assumed that such a refusal would lead to a situation where those children, citizens of the Union, would have to leave the territory of the Union in order to accompany their parents. Similarly, if a work permit were not granted to such a person, he would risk not having sufficient resources to provide for himself and his family, which would also result in the children, citizens of the Union, having to leave the territory of the Union. In those circumstances, those citizens of the Union would, as a result, be unable to exercise the substance of the rights conferred on them by virtue of their status as citizens of the Union." ([Emphasis added)

Certain features require to be highlighted from those passages. The first is that this area of the law is concerned with dependent persons, having the status of European citizens. Any measure which has the effect of depriving such citizens of the Union of the general enjoyment of the substance of the right conferred on them by virtue of their status as citizens of the Union is prohibited. That is the mischief which the decision, in that case, was designed to avoid. The court, at paragraph 43, found that a refusal to grant a right of residence to a third country national with dependent minor children in the member state where those children are nationals and reside and also a refusal to grant such a person a work permit would result in the mischief identified. The unacceptable effect, in question, would be the deprival of the children in question of their genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union. The assumption upon which that conclusion was arrived was that a refusal to grant a right of residence to the parent would lead to a situation where those children, citizens of the European Union (not, be it noted, simply citizens of Belgium) would have to leave the territory of the Union (not, be it noted, the territory of Belgium) depriving them of the opportunity to enjoy their rights as citizens of the Union. The emphasis throughout the judgment is on the enjoyment of rights within the territory of the Union. What is to be avoided is a result which would mean that citizens of the Union would be unable to exercise the substance of their rights conferred on them by virtue of their status as citizens of the Union.

[6] The present proceedings are based on one of the petitioner's children, M, being a citizen of the Republic of Ireland. We have had placed before us no material to suggest that if the family were required to move within the European Union to the member state of Ireland, the Irish government would refuse to recognise the effect of the Zambrano judgment and indeed, we have had material placed before us which makes it clear that the Irish government is fully aware of the judgment in Zambrano and would seek to apply it in appropriate circumstances.

[7] In the foregoing circumstances we are satisfied that there is no justification for any application to be made to the European Court of Justice for a preliminary ruling, as proposed by the petitioner, since the law set out in the Zambrano judgment does not apply to the situation in which the petitioner and her family find themselves. The reasoning of the court in that case does not fall to be read as even possibly having intended to be extended to provide for a right of residence to a parent in a country which is not both the place of residence and the country of nationality of his or her dependent child.

[8] Our views on the matter are confirmed by reference to other decisions of the European Court of Justice. We have pointed out that it is not contended on behalf of the petitioner, in the present case, that her children, and in particular her son M, have sufficient resources to support themselves so that they would not be a burden on the public services such as the National Health Service of the United Kingdom if they were to be allowed to remain here. By article 17(1) EC (now article 20 TFEU), persons holding the nationality of a member state become citizens of the Union. By article 18 EC (now 21 TFEU) it was provided that:

"Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by measures adopted to give them effect ...."

With regard to such "limitations", article 1(1) of Directive 90/364 provided that:

"1. Member States shall grant the right of residence to nationals of Member States who do not enjoy this right under other provisions of Community law and to members of their families as defined in paragraph 2, provided that they themselves and the members of their families are covered by sickness insurance in respect of all risks in the host Member State and have sufficient resources to avoid becoming a burden on the social assistance system of the host Member State during their period of residence."

In Zhu and Chen v The Secretary of State for the Home Department [2004] 3 CMLR 48 the circumstances were, in several respects, similar to those of the present case. C's mother was a Chinese national. She entered the United Kingdom when she was about six months pregnant and gave birth to C in Belfast. She and C then moved to Wales. Under Irish law C was entitled to Irish nationality since she was born in the island of Ireland. She was not entitled to United Kingdom nationality. C and her mother did not rely upon public funds in the United Kingdom and there was no reasonable prospect of their being so reliant. In those circumstances the European Court of Justice held, under article 18 EC and Directive 90/364 that C's mother had a right to reside in the host member state, the United Kingdom, for an indefinite period. The decision in that case does not, of course, avail the petitioner in the present case, as was recognised by her counsel, since she does not seek to demonstrate that neither her children nor herself will be dependent on public finance for their support. Article 7 of Directive 2004/38/EC now provides that:

"1. All Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they:

(a) are workers or self-employed persons in the host Member State; or

(b) have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State; or

(c) - are enrolled at a private or public establishment, accredited or financed by the host Member State on the basis of its legislation or administrative practice, for the principal purpose of following a course of study, including vocational training; and

- having comprehensive sickness insurance cover in the host Member State and assure the relevant national authority, by means of a declaration or by such equivalent means as they may choose, that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence; or

(d) are family members accompanying or joining a Union citizen who satisfies the conditions referred to in points (a), (b) or (c)."

The petitioner's son does not meet the specified conditions. The petitioner's claim is based simply on a derivative right of residence under article 20.

[9] More recently the decision in Zambrano has been considered by the European Court of Justice in the case of Derici and others v Bundesministerium für Inneres [2012] 1 CMLR 1311. The court held in that case that Directive 2004/38 which now provides for the exercise of the primary and individual rights under European Union Citizenship to move and reside freely within the territory of the member states, does not apply to EU citizens resident in the country of which they are nationals and who have never exercised their right to free movement. In the present case, as previously noted, it is not contended that the petitioner's son, though living in the United Kingdom, as an Irish national has ever, as a matter of fact, sought to exercise a right to move within the European Union. Any right of residence in the United Kingdom does not arise from European Union Law but from United Kingdom domestic law. In paras 66 and 68 of their judgment the European Court of Justice in Derici said this:

"66. It follows that the criterion relating to the denial of the genuine enjoyment of the substance of the rights conferred by virtue of European Union citizen status refers to situations in which the Union citizen has, in fact, to leave not only the territory of the Member State of which he is a national but also the territory of the Union as a whole. ...

68. Consequently, the mere fact that it might appear desirable to a national of a Member State, for economic reasons or in order to keep his family together in the territory of the Union, for the members of his family who do not have nationality of a Member State to be able to reside with him in the territory of the Union, is not sufficient in itself to support the view that the Union citizen will be forced to leave Union territory if such a right is not granted." (Emphasis added)

Those passages are a further clear recognition of what the decision in Zambrano is intended to prevent, namely the removal of a citizen of the European Union from the territory of the Union as a whole. The decision in Derici, in our view, puts beyond any doubt that it is not sufficient that a person, such as the petitioner, can show that her child may require to leave the member state in which he resides if she, as his mother, is not given residence. She requires to demonstrate that any refusal to allow her to reside will require the child to leave the European Union as a whole. In the present case the child is a citizen of Ireland. He has rights of residence there, as such. Any refusal of a right of residence to his mother in the United Kingdom will not deprive him of his right to remain in the European Union, in the member state of Republic of Ireland. In the very recent case of Iida v Stadt Ulm C-40/11 the limitations upon the derivative right of residence of a parent of an EU citizen were fully discussed and the decision in that case is wholly consistent with the analysis provided in the case of Zambrano.

[10] Before this court there was some considerable discussion about the "right" of residence which the petitioner's son enjoys at the moment in the United Kingdom, as an Irish citizen. The respondent chooses to describe this as a "de facto" right of residence. In a statement provided to this court an official of the respondent's department informed us as follows:

"3. The common travel area (CTA) comprises the UK, Ireland, the Channel Islands and the Isle of Man. It was enshrined in UK law by the Immigration Act 1971.

4. Section 1(3) of the 1971 Act provides that arrival in the United Kingdom on a local journey from another place in the CTA shall not be subject to control under (the 1971 Act) nor shall a person require leave to enter the United Kingdom on so arriving ...

5. Section 1(3) is subject to a number of exceptions, which are set out at section 9 of the 1971 Act and in the Immigration (Control of entry through Republic of Ireland) Order 1972 (SI 1972/1610). Of these the only ones that could apply to Irish national are the ones that apply where that person has been deported or excluded from the UK (see section 9(4) of the 1971 Act and Article 2 of the SI).

6. Therefore, in the vast majority of cases, when an Irish national travels from Ireland to the UK, that person does not require leave to enter the UK, and so there is no restriction on the length of time for which he may remain in the UK.

7. Home Office policy is only to deport an Irish national in very limited circumstances, which are more restrictive than those which apply in the case of other EEA nationals ...

8. For the purposes of the present case, the above is considered sufficient to constitute a "de facto" right of residence for the reclaimer's son."

[11] In the written submissions lodged, on her behalf in this case, the respondent makes the point that the "de facto" right of residence does not arise from EU law or derive from any European Union rights. In those circumstances it is submitted that the more favourable rights conferred upon citizens of the Republic of Ireland than citizens of other member states under those provisions of domestic legislation are not rights arising by virtue of the citizenship of the EU and as a consequence no question arises of the petitioner being required to be allowed to reside with her son in the UK to secure the effect of enjoyment of the rights or benefits accruing to him as a citizen of the EU. We consider those submissions to be sound.

[12] In all the foregoing circumstances we are entirely satisfied that, simply on a proper understanding of the European law, as it now stands, there is no ambiguity or doubt in that law. In particular no question arises from the decision of the European Court of Justice in Zambrano, as contended for on behalf of the petitioner, which would mean that European law might be held to confer upon a person in the situation of the petitioner a right of residence as she claims. The law, in our view, on that point is clear and it is, accordingly, unnecessary for this court to seek a preliminary ruling as suggested by the petitioner from the European Court of Justice. See Reg v Stock Exchange ex p Else Ltd [1993] QB 534.

[13] We should add that nothing said in this judgment has any bearing on any right that the petitioner may have to seek residence in the United Kingdom on the basis of the protections contained in article 8 of the ECHR - compare Derici at para 69.