As we keep getting Zambrano searches on our blog, we thought we’d do a quick update to our previous post given that we were awaiting some kind of response from the UK Border Agency at the time we last wrote about it.
Basically the UK Border Agency has confirmed in a letter to ILPA that it will be looking at putting regulations to reflect the Zambrano judgment in place ‘before the close of 2011 at the earliest’.
UKBA’s understanding of the judgment
The UK Border Agency interprets the Zambrano judgment to apply to: a) third country nationals upon whom British children are dependent and b) third country nationals upon whom a British citizen adult is dependent. It takes the view that the judgment does not apply in cases where dependency is simply financial.
Arrangments for applications
From 19 September 2011 therefore, applications for Certificates of Applications will be granted where people can show that they potentially fall within the scope of Zambrano (as per above understanding) and are able to evidence this through documentation showing: a)that the depdenent is a British citizen, b) the existence of a relationship and c) dependency. Once the relevant Regulations come into effect, applications will be considered substantively, and documentation will be issued according to those Regulations.
In removal cases those who potentially fall within the acope of Zambrano as per above understanding should have removal suspended pending a substantive decision on their case.
It may be that the above understanding ultimately changes. The Austrian courts have lodged a preliminary reference to the ECJ in Dereci and Others v Bundesministers fur Inneres .
They’ve basically asked whether Article 20 of TEFU prevents a member state from refusing residence where Union citizens are not dependent on the third country nationals for subsistence in a range of different circumstances, and in a range of different familial relationships.
The Austrian courts have also asked for clarification about the circumstances in which a third country national can be denied the right of residence in the above context. However, given that the reference is apparently not by way of accelerated procedure, we’re not expecting to see this judgment for a few years yet.