Directive 2003/109/EC: An analogy
Scenario 1
Imagine you live in a town in which your town, Londontown, and the next two towns over lack an elementary school. One day, all three the local authorities form a coalition or partnership. They agree to build the school. At the school opening, the coalition says,
Under the 2003 Schools Proclamation, we declare this school is everyone- expect for people who live in Londontown.
So, children from the neighbouring towns can attend the school, but not children from your town. Your neighbour, who has a child, is unable to send her child to the school because she lives in an excluded town. So, your neighbour takes the coalition to court.
Your neighbour argues that under the Doctrine of Fair Play, her child should be able to go to the elementary school. The judge agrees with your neighbour and her child is able to go to school.
Scenario 2
Now, imagine Londontown and the other towns nearby are also without a hospital. One day, the coalition agrees to build the hospital. At the opening, they say,
Under the 2004 Hospital Proclamation, we declare this hospital to only be for people who earn more than 100,000 GBP per year.
No one in Londontown or the other two towns who earns less than 100,000 GBP can go to the hospital. You decide to take the coalition to court. You argue that under the Doctrine of Fair Play, you should be able to go to the hospital. The judge agrees with you and everyone earning less than 100,000 GBP per year is now allowed to go to that hospital.
Explanation
Doctrine of Fair Play = Article 20 TFEU
2003 Schools Proclamation = 2003 Directive
2004 Hospitals Proclamation = 2004 Directive
Scenario 1 is the situation with the 2003 Directive. Scenario 2 is the situation with the 2004 Directive. The Doctrine of Fair Play
Both Directives exclude UK Zambrano carers of British children (and also in Ireland and Denmark).
The person in Scenario 2 is Ruis Zambrano. The person in Scenario 1 does not exist. No one from the UK or Ireland or Denmark raised the issue before the EU court.
Again, the 2004 Directive was challenged by Ruis Zambrano. That case applies to all Zambrano carers. The 2003 Directive was never challenged. But that does not mean the 2003 Directive is correct.
A big problem is
- No one has challenged the 2003 Directive, and
- No one has challenged the Withdrawal Agreement (which relies on the 2004 Directive)
Zambrano carers (of British children who remain in the UK) are entitled to permanent residence - eventhough they are not part of the 2003 Directive. They are not temporary residents.
To say that this group are not eligible due to not being part of the 2003 Directive is to miss the bigger picture. The overriding principle is Article 20 of the Treaty of the Functioning of the European Union (TFEU).
The September 2022 case by the Grand Chamber makes this argument quite clear. If you read the ruling, there are constant references to Article 20 of the TFEU.
My thoughts
When the UK refused to give Ms Akinsaya permanent residence after a reasonable amount of time, say five years, they violated her rights under Article 20 of the TFEU.
When the EU and UK published a Withdrawal Agreement that excluded UK based Zambrano carers of British children, they violated their rights under Article 20 of the TFEU.
When the Home Office published guidance to ban a particular type of Zambrano carer, they violated Ms Akinsaya's rights under Article 20 of the TFEU.
Article 20 of the TFEU is an extension of Article 8 under the European Convention on Human Rights.
What can be done?
If the UK judges do not grant residence, Ms Akinsaya (or someone similar) may go before the European Court of Human Rights (ECHR). Applications have to be filed within 4 months of the final court decision.
Apply to the Court
https://echr.coe.int/Pages/home.aspx?p=applicants&c=