A closer look at Zambrano

Ruiz Zambrano v Belgium Case C-34/09

There have already been a number of helpful and  detailed postsnotes and articles about the Zambrano case – this is why we’ve only briefly touched on this case in our recent article on ZH (Tanzania).

However, given that quite a few of you seem to be coming to this blog through search engines in pursuit of something about the case, we thought we’d do a little note for you with a view to explaining it in a bit more detail.


The Zambrano couple were Colombian nationals. Their applications for asylum were rejected and they were ordered to return to Colombia – the order however contained a non-refoulement clause. This stated that they should not actually be sent back to Colombia because of the civil war.

As the Zambrano couple had no status, Ruiz Zambrano sought to regularise their stay. Those applications were unsuccessful. Ruiz Zambrano had previously worked, but his employment contract was subsequently terminated – he was told he had no entitlement to work as he had no work permit. He was also subsequently refused unemployment benefit because of his irregular status.

The Zambrano couple had two children who were both born in Belgium, and had therefore acquired Belgian nationality. They had however never lived outside of Belgium and never exercised their freedom of movement. Ruiz Zambrano sought to rely on a derived right of residence as the ascendant of minor children who are nationals of a Member State according to the Zhu and Chen case.


The refusal to give a right of residence to a third country national (TCN) with dependent minor children in the Member State where those children are nationals, together with the refusal to grant a work permits to enable TCN parents to work to support children, has the effect of depriving citizens of the Union genuine enjoyment of their citizenship rights under Article 20 of  TEFU.

In her explanatory note for ILPA professor Guild explains the position in the following terms.

‘The rights of Zambrano children who are EU citizens comes directly from Article 20 TEFU (citizenship of the Union);  Those rights include:

• The right to live in Belgium (para 40 and 41)

• The right of residence for their third country parents (both of them it would seem) to live in Belgium with them as this is    necessary for the children who are EU citizens to enjoy their rights as citizens of the Union (para 42 and 43)

• The right to a work permit for the third country national parents to support the  children (as otherwise they might all have to leave the state on grounds of penuary) (para 44).’


This is a hugely significant judgment as it’s saying that Citizens of the Union who can rely on Article 20 TEFU directly are not required to move, and are not subject to the limitations in Directive 2004/38/EC.

It is important to note however that the reach of this case extends only to those cases where the Citizens Directive 2004/38/EC is not applicable. Article 20 TEFU expressly limits its application to conditions in EC Treaties and secondary legislation. Accordingly, it would be inapplicable to Union Citizens who move and reside in another Member State.

Further, as Weisbrook suggests, there are some restrictions that apply to this sort of case. In particular, the Union Citizen must face a potential deprivation of ‘the genuine enjoyment of the substance of the rights’ conferred by virtue of the Status of Union citizenship – in Zambrano the far reaching risk of removal from the territory easily fulfilled this requirement. Weisbrook however also observes that the Court appears to rely heavily of the fact that in order to enjoy their rights of citizenship the Zambrano children were dependent on the parent’s right of residence and employment- this could constrain it’s future development.

Even so, it is not difficult to see the potential scope for development  in the future. As Guild points out, it could be extended to spouses – McCarthy which is pending before the ECJ will shed light on this. It could also potentially be extended to other family members and guardians in an identical situation. And, depending on how the potential limitations that unravel, it could also apply to family reunification cases.

It is also likely to have implications for deprivation of British citizenship cases themselves –  not only in those cases in which there are British children involved –Kaur was concerned with the acquisition rather than deprivation of citizenship so the possibilites for the application of Community law are not at all foreclosed, and are enhanced by by this.

Finally, one imagines that if linked also with the Charter of Fundamental Rights, it can be expected to have implications for access to a range of social entitlements for families containing TCN members, if the effect of non-provision is to result in the constructive removal of the citizen of the Union.

The flip side of all of the above of course, is that both the UK Government and other European governments may well respond – particularly in the current climate –  by tightening requirements for settlement and citizenship in order to minimise the potential effects of the judgment.

We’re all presently waiting for some kind of response from the Government to Zambrano. Of course in the meantime, those parents/families who fall with the terms of the above judgment who have been removed/constructively removed e.g. through an absence of welfare/work entitlements, or refused residence should seek legal advice.

About jcwi

Joint Council for the Welfare of Immigrants is a key campaigning voice in the field of immigration, asylum and nationality law and policy. It is completely independent from government funding, remaining entirely free from government influence. View all posts by jcwi

4 responses to “A closer look at Zambrano

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