Important briefing for people in detention facing imminent removal or in the community waiting for removal directions to be set, who have a spouse/partner/child who is a UK national.
European Court of Justice is considering whether a national of any European Union country and their family members have the right to remain in the European Union regardless of National law. (at the moment UK does not automatically give the right to a non UK family member to reside in the UK).
Until that decision is made it may be able to persuade UKBA through the courts that any decision to remove should be stayed and that anyone in detention should be released.[This briefing is provided to assist in understanding the European Court of Justice decision. It does not form part of the reasons for the decision. The full judgment of the European Court of Justice is the only authoritative document. (Ruiz Zambrano RFH.pdf attached, only available in French)
If you think the information may be of benefit to you or someone else you must print of this message and attachments and take them to a reputable solicitor]
A new case for asylum-seekers and others threatened with removal/deportation with children or partner who are British citizens or citizens of other European Economic Area countries
On 26 January 2010, the European Court of Justice heard a case which may give European Union (EU) rights of residence to asylum-seekers and other people fighting deportation. The people who stand to benefit are non-European nationals in the UK whose children or partner is/are British citizens (or citizens of another European Economic Area country) and are living with them.
The case name is C-34/09 Ruiz Zambrano (Ruiz Zambrano RFH.pdf attached). It was referred to the Court of Justice by the Brussels employment tribunal (Belgium). Mr Ruiz Zambrano is a Colombian asylum-seeker living in Belgium with his wife and three children, two of whom were born in Belgium and so were born Belgian citizens. The Belgian children had never lived outside Belgium. Mr Ruiz Zambrano had no residence permit, but was employed. When he lost his job he claimed unemployment benefit.
To decide his claim, the employment tribunal had to decide whether Mr Ruiz Zambrano’s Belgian children meant he had a right to reside under EU law even though he was an asylum seeker with no Belgian residence permit. The tribunal asked the Court of Justice whether Article 18 of the European Community Treaty (right of residence of Union citizens) only covers cases of free movement, or whether it also gives a Union citizen a right to continue to reside in his/her own country. The tribunal also asked if such a right means that the parents of a Union citizen child also have a right to reside, even if they did not have the right to work to support the child.
The case was heard by a Grand Chamber of the Court of Justice, which is only used for cases which the Court of Justice thinks are very important. The next stage is the opinion of the Advocate-General, normally given 3 – 6 months after the hearing. After that the Court will take time to give its own judgment, which in Grand Chamber cases normally takes a further 3 – 9 months.
If the Court of Justice accepts Mr Ruiz Zambrano’s argument, that will be a very important extension of EU law. Until now, the Court has said that European Union law on rights of residence does not apply where the Union citizen is living in their own country and has no connection with any other European Union state. If the Court accepts his argument, then British citizens may have EU rights to live in the UK, even if they have never travelled elsewhere in the European Union. Such extra rights would give them the same rights to family union as other EU nationals: to have their spouse and children aged under 21 (or dependant) living with them. If the Court accepts Mr Ruiz Zambrano’s argument about parents, then people with British (or other EU) children may have a right to reside in the UK under EU law to allow their children to stay in the UK, even if they need permission to work to support those children.
Until the Court of Justice’s judgment is given, British courts and tribunals cannot disregard existing case law. However, people who would benefit from a favourable judgment in the Ruiz Zambrano case can use the on-going case to argue that European law is no longer clear. British courts should not make a final adverse decision in the cases of people who would benefit from a favourable judgment in the Ruiz Zambrano case because that would require the court to decide this point against those people, before the Court of Justice has given its judgment. The Court of Justice has ruled that a final decision cannot be taken by national courts where the answer under European law is not ‘obvious’ to the courts of all the Member States (judgment in Case 283/81 CILFIT  ECR 3415). The Brussels employment tribunal did not consider the answer obvious, so the British courts making a final decision are not entitled to either. Also, if the Court thought that Mr Ruiz Zambrano’s case was obviously wrong, it would not have decided to hear the case before a Grand Chamber. British courts may therefore need to adjourn cases and/or refer questions to the Court of Justice.
The questions referred to the Court of Justice in the Ruiz Zambrano case are at:
The rest of the information above comes from the Report for Hearing on the case, which is in French and available from the Registry of the Court of Justice. The website has judgments, opinions and contact details: http://curia.europa.eu/jcms/jcms/Jo2_7030/
The countries in the European Union are: Austria, Belgium, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, UK.