Exploring the Application of the Zambrano Principle

About free movement of persons and citizens under EU law

Nilay Patel v The Secretary of State for the Home Department; and The Secretary of State for the Home Department v Adil Shah, Nabil Bourouisa [2017] EWCA Civ 2028 are cases on appeal that addressed issues around the principle as laid out in the case of Ruiz Zambrano v Office national de l’emploi. The Zambrano principle states that the parent, who is a national of a non-member state (TCN), of an EU citizen child resident has a right to reside in the EU, the purpose of which is not to deprive the child the EU citizenship rights on removal of the parent from the EU. In these appeal cases, this principle was not held applicable in the first appeal case of Mr. Patel where he is an Indian national but his parents are UK citizens; but applied in the second appeal case of Mr. Shah where he is a Pakistani national and the primary care taker of his son; both his and wife are British nationals.

Union citizenship was introduced through the Maastricht Treaty in 1992, which reinforced the right to free movement of people. It has become the main source of rights for ‘mobile EU nationals’. This is reflected in the principles laid down by the Court of Justice of the European Union (CJEU), which will be seen in the later parts of this essay. The introduction of Union Citizens entitles citizens of member states to enjoy rights provided by EU law as EU citizens and not as migrants. Union Citizenship is covered under Article 20 of TFEU, which confers EU Citizenship on every person who is a national of a member states. Such citizenship does not replace national citizenship.

Legal Principles and their interpretation related to Right to free movement

In the case of Grzeczyk it was held that nationals of member states have Union Citizenship and are entitled to same treatment in law no matter their nationality. Such rights stem from the definition of “internal market” under Article 26(2) of Treaty on the Functioning of EU (TFEU). Internal market is “an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured”. It is also termed as the European Single Market or Common Market, and comprises four freedoms of movement of goods, capital, services, and people within EU. According to Article 21 of TFEU, EU citizens are guaranteed the right to free movement and residence within member states. A Union Citizen is entitled to protection under this article as well as under Article 8 of European Convention of Human Right (ECHR). In the case Metock CJEU held that there will be serious obstruction of freedoms provided under ECHR if Union Citizens are prohibited from leading a normal life in any host member states. As such, a Union Citizen has the right to lead a normal life. Article 8 of ECHR protects the family life of such a citizen and any laws of

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1. Ruiz Zambrano v Office national de l’emploi (Case C-34/09) [2012] QB 265.
2. Koen Lenaerts, ‘EU citizenship and the European Court of Justice׳ s ‘stone-by-stone’ approach’ (2015) 1(1) International Comparative Jurisprudence 1-10.
3. Catherine Barnard, Steve Peers, European Union Law (Oxford University Press 2014).
4. Grzeczyk (n 153) para 36.
5. Paul Craig and Gráinne De Búrca, EU law: text, cases, and materials (Oxford: Oxford University Press 2011).
6. European Commission, “The European Single Market” (21/04/2017).
7. Case C-127/08 Metock and Others v Minister of Justice, Equality and Law Reform (CJEU, Judgment 25 July 2008) [62].

member states that take away such right contradicts the public purpose it aimed to achieve. There are directives of the EU Parliament and council that encourage Union citizens to exercise their right to free movement. For instance, Directive 2004/38/EC talks about the right of Union citizens and their family members to move and reside freely within the Member States. But, the real concerned is with the challenges in implementing or transposing these directives at the member states’ level. Implementation practices at the member states level impeded the exercise of rights granted to EU citizens. CJEU plays an active part in reducing such challenges. There have been many cases where the freedom of movement has been interpreted by CJEU to cover all EU citizens irrespective of their economic activity.

The CJEU in its case interpretation and principles has made the distinction between “choice” and “compulsion”. The relevant principles could be studied as those after Zambrano and those before Chavez-Vilchez. In the landmark case of Ruiz Zambrano, CJEU established that EU citizenship is not restricted to and not operational only in relation to free movement law. To reiterate, a parent, who is a national of a non-member state (TNC), of an EU citizen child resident shall have the right to reside in the EU so as not to deprive the child his/her EU citizenship rights on removal of the parent from the EU. Article 20 of the TFEU prevents national measures from depriving Union Citizens of genuine enjoyment of rights attached to such citizenship, notwithstanding their previous exercise of right of free movement. In Harrison, it was observed that the Zambrano principle could not be extended so as to cover drawbacks of a situation where an EU citizen is compelled to leave the EU. If there would not be any compulsion if the right of residence were to be refused to the non-EU family member, EU law would not be considered engaged. As such, “the substance of the rights attaching to the status of European Union citizens” shall not include the right to respect for family life. CJEU held that national court should determine whether the removal of the TCN would actually compel Union citizen to leave EU. Individuals may rely on EU citizenship, even in the absence of a cross-border element. The UK court interpretation is that dependency must be of necessity, not of choice. Such dependency must have “existed in the country of origin,

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8. Timothy Endicott, ‘Proportionality and Incommensurability’ in Grant Huscroft, Bradley W. Miller and Grégoire Webber Proportionality and the Rule of Law: Rights, Justification, Reasoning (1st Edition Cambridge University Press 2014).
9. Anthony Arnull and Damian Chalmers, The oxford handbook of European Union law (Oxford: Oxford University Press 2015).
10. European Union Agency for Fundamental Rights, ‘Making EU citizens’ rights a reality: national courts enforcing freedom of movement and related rights’ accessed
11. Ruiz Zambrano v Office national de l’emploi (Case C-34/09) [2012] QB 265.
12. Harrison v Secretary of State for the Home Department [2012] EWCA Civ 1736 [2013] 2 CMLR 23.
13. O v Maahanmuuttovirasto (Joined Cases C-356/11 and C-357/11) [2013] Fam 203.
14. European Union Agency for Fundamental Rights, ‘Making EU citizens’ rights a reality: national courts enforcing freedom of movement and related rights’ accessed
15. Tamás Szabados, ‘National Courts in the Frontline: Abuse of Rights under the Citizens' Rights Directive.’ (2017) 33 Utrecht Journal of International and European Law 84.

at the very least at the time when they applied to join the Union citizen on whom they are dependent”.

CJEU emphasised that Articles 20 and 21 of TFEU do not limit member states to refuse the right to reside to a third-country national in its territory where such individual has full responsibility for an EU citizen minor child or children, who have not exercised the right to free movement. It is for the national courts to examine whether such refusal does not deprive the children the enjoyment of their EU citizenship rights. The right to EU citizenship, as provided under Article 20 of TFEU, alone does not confer any rights on a TCN. The UK Supreme Court has held it is wrong to include the question of choice into the assessment of compulsion. The test of compulsion has a practical aspect to it, which should be applied to the actual facts instead of a theoretical set of facts. CJEU, while focusing on emphasised right to EU citizenship, observed that a TCN may acquire a derivative right of residence if their removal could deprive an EU citizen of their citizenship rights. There is a distinction between cases involving an adult EU citizen and cases involving a minor EU citizen. The case of Chavez-Vilchez does not provide any relaxation at the level of compulsion required in cases involving adults. The court held that the right of residence is a derived from the dependent EU or UK citizen, and hence it is a “derivative right”. This right triggers the deprivation of the benefits of EU citizenship and is related to the nature or intensity of the compulsion to leave EU due to by departure of the parent, who is a national of a non-member state. The UK Supreme Court stated that the derivative right is for the sole purpose of ensuring that Union Citizen’s rights are effective. This principle, therefore, restricts TCN from claiming the right to reside in the EU, and calls for a “relationship of dependency” between TCN and the Union Citizen. CJEU held that it will be not a sufficient for a member state national to claim that he or she will be forced to leave the EU, if a right of freedom of movement is not granted his family member for economic reasons or otherwise.

In the period before the case of Chavez-Vilchez,case principles and authorities distinguished between cases where both the parents, or a single parent, who have/has the care of a child or children, were leaving the EU, and those cases where a parent in the family could remain. In Zambrano, one can see that departure of both parents from EU would practice compel the children’s departure, and deprive them of their EU citizenship rights. Whereas, in Dereci,

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16. C-83/11 Judgment of the Court (Grand Chamber) of 5 September 2012 Secretary of State for the Home Department v Muhammad Sazzadur Rahman and Others.
17. C-86/12 Judgment of the Court (Second Chamber) of 10 October 2013 Adzo Domenyo Alokpa and Others v Ministre du Travail, de l'Emploi et de l'Immigration.
18. R (Agyarko v Secretary of State for the Home Department [2017] 1 WLR 623).
19. Patel v Secretary of State for the Home Department [2019] UKSC 59.
20. KA v Belgium (Case C-82/16) [2018] 3 CMLR 28.
21. Chavez-Vilchez and Others v Raad van Bestuur van de Sociale Verbekeringsbank and Others (10 May 2017) (Case C-133/15) (Grand Chamber), [2017] 3 WLR 1326, [2017] 3 CMLR 35
22. KA v Belgium (Case C-82/16) [2018] 3 CMLR 28.
23. Murat Dereci and Others v Bundesministerium für Inneres Case C-256/11.
24. Chavez-Vilchez and Others v Raad van Bestuur van de Sociale Verbekeringsbank and Others (10 May 2017) (Case C-133/15) (Grand Chamber), [2017] 3 WLR 1326, [2017] 3 CMLR 35
25. Ruiz Zambrano v Office national de l’emploi (Case C-34/09) [2012] QB 265.
26. Murat Dereci and Others v Bundesministerium für Inneres Case C-256/11.

the mother had Austrian citizenship, and her choice is to remain in Austria, the children could also remain.

Conclusion

Every EU citizen has a right to family life, as enshrined under Article 8 of ECHR. Article 21 of TFEU, grants EU citizens the right to free and as per Article 20 member states are prevented from taking measures that deprives Union Citizens of genuine enjoyment of rights attached to Union citizenship. However, the courts have to determine the applicability of such rights when it comes to family members of the citizens. From the cases observed so far, difference could be made out between situations involving an EU citizen who is an adult, a child or a TNC. The determination of existence of compulsion or choice will be made accordingly vis-a-vis the right to respect for family life or to claim derivative rights. The interpretation of CJEU reflects its intention of and importance given to ensuring the Union Citizens rights.

Continue your exploration of Exploring the Ambiguities Between Immigration with our related content.

Cases

Case C-127/08 Metock and Others v Minister of Justice, Equality and Law Reform (CJEU, Judgment 25 July 2008) [62].

C-83/11 Judgment of the Court (Grand Chamber) of 5 September 2012 Secretary of State for the Home Department v Muhammad Sazzadur Rahman and Others.

C-86/12 Judgment of the Court (Second Chamber) of 10 October 2013 Adzo Domenyo Alokpa and Others v Ministre du Travail, de l'Emploi et de l'Immigration.

Chavez-Vilchez and Others v Raad van Bestuur van de Sociale Verbekeringsbank and Others (10 May 2017) (Case C-133/15) (Grand Chamber), [2017] 3 WLR 1326, [2017] 3 CMLR 35

Grzeczyk (n 153) para 36.

Harrison v Secretary of State for the Home Department [2012] EWCA Civ 1736 [2013] 2 CMLR 23.

KA v Belgium (Case C-82/16) [2018] 3 CMLR 28.

Murat Dereci and Others v Bundesministerium für Inneres Case C-256/11.

O v Maahanmuuttovirasto (Joined Cases C-356/11 and C-357/11) [2013] Fam 203.

Patel v Secretary of State for the Home Department [2019] UKSC 59.

R (Agyarko v Secretary of State for the Home Department [2017] 1 WLR 623).

Ruiz Zambrano v Office national de l’emploi (Case C-34/09) [2012] QB 265.

Books

Arnull A and Chalmers D, The oxford handbook of European Union law (Oxford: Oxford University Press 2015).

Barnard C, Steve Peers, European Union Law (Oxford University Press 2014).

Craig P and Búrca GD, EU law: text, cases, and materials (Oxford: Oxford University Press 2011).

Endicott T, ‘Proportionality and Incommensurability’ in Grant Huscroft, Bradley W. Miller and Grégoire Webber Proportionality and the Rule of Law: Rights, Justification,

Reasoning (1st Edition Cambridge University Press 2014).

Journals

Lenaerts K, ‘EU citizenship and the European Court of Justice׳ s ‘stone-by-stone’ approach’ (2015) 1(1) International Comparative Jurisprudence 1-10.

Szabados T, ‘National Courts in the Frontline: Abuse of Rights under the Citizens' Rights Directive.’ (2017) 33 Utrecht Journal of International and European Law 84.

Others

European Commission, “The European Single Market” (21/04/2017), accessed