Non-EU Parents with EU Citizen - Ruiz Zambrano Case

[Obie]

However i disagree partially with your view that zambrano is applicable to chen. i believe that chen can argue article 20, but not use the actual judgement.

I am sorry if i seem to say Zambrano is applicable to Chen. The judgement did not explicity say so.

I was merely stating that, looking at the functions of the rights under the treaty and the purpose for which they were implemented, and the fact that there should be no hinderance to the exercise of the rights under the treaty, especially the right of free movement, a parent in chen case could argue in court that refusing them the right to work in the UK, is an hinderance to the free movement and residence rights of the children.
The parents will relocate to the country of the child's birth and nationality, which will offer them better condition, than the one offered them when the child exercised her rights of free movement.

This could not be in accordance with the rights under the treaty, and i don't think the court in Zambrano, were seeking to create such effect.

This is an arguable matter in court. That is all i am saying.

[eea_noneu]

Hi Obie,

I too agree with your comments.

[leonex4t5]

EEA_
With the information you have given you only qualify for resident card(with no work) under chen rule... which is clearly not what you want.

interms of the gap, you should speak to a solicitor about your chances, however you have mentioned what i was going to advice which is further leave to remain and then ILR after.

i'm afraid from my view, there is know cut corners, i understand your frustration about the expenses, but it's what it is.

i would advise you get a lawyer who will examine your case properly, and you may qualify for ILR by 2012 despite the 130days gap. are you able to give reasonable evidence of why you where absent for that many days?

[leonex4t5]

@obie, completely agree with your statement now. its a matter for the court.

[Rolfus]

Look at this thread http://www.immigrationboards.com/viewto ... c&start=20 to see how my partner was rejected for EEA FP when applying under Chen,M & Zambrano

[eea_noneu]

Hi Rolfus,

In your case I think the ECO doesn't have proper guidence to act on. In situations like this, any statements or intentions should be communicated from top ( i.e the government ministry level) to ECO.

Ireland responded quickly on Zambrano but UK didnt, because they may be assessing the consequences. Eventually they need to fallow and respect the ECJ judgements.

[leonex4t5]

ukba do not have to give guidiance before people can excercise the zambrano judgment in the uk... its a binding caselaw and the uk courts are already making reference to it. like myself i have made an application to the HO refering to zambrano

[eea_noneu]

Hi leonex4t,




Sorry I am going too far but these are likely possibilities.

Thanks.

[leonex4t5]

to be honest with you, it would be illegal for me to comment any further to your situation, as it may not be the best advise because i am not a solicitor, what i am sure of is that EEA 2 Resident Card(with right to work) + EEA4 permanent Resident is not applicable to you, however EEA 2 resident Card(Chen ruling without right to work) is applicable to you, but this will not be in your best interest. get a good solicitor they may be able to advise you better and most likely argue your case better for ILR, although you risk getting DLR if the home office feel you do not meet the requirements ie your gaps. i think you should seek legal advise as you case is not straight foward.a solicitor would be able to identify if its best for you to make a futher leave to remain then after one year you apply for ILR, or to apply for ILR straight, and argue your gaps.

I wish you goodluck.

[eea_noneu]

Hi leonex4t,

Yes I need to agree with you, as I wont come under in the Family member with out any updates from UKBA. Dont worry nothing is illegal here. Instead of going to FLR rouite and relying on myself , I am trying to explore the possibilities under EEA2 application based on the above said 3 case references in the other post.

Thanks for your comments though.

[howlong]

[@howlong.
My case is going on fine, remember i used EEA2 form for the zambrano application, they said they are currently not issuing any documentation inlight of zambrano, they however did not refuse me, in otherwords telling me wait for guidance, i see this as unlawful and a ground for judicial review, but i couldnt be bothered so i used the FLR(O), quoted, Zambrano, ZH tanzania, Chuwamba, Article 8, i sent the application on 02/06/2011. one month gone, and also my case has some very compassionate grounds so my mp is writing to them to make a prompt decision.hi leonex
How long did it take for the HO to reply you that they r currently not issuing zambrano. Did you get Certificate of Application after sending the EEA 2?

[leonex4t5]

it took Home Office 6weeks to reply me, but what they did was on lawfully, and cheeky, because they did not refuse, and did not grant, instead said they eea department aren't issuing any documentation that includes coa. but couldnt be bothered doing a judicial review, because using the FLR(O), home office can not say they have no documentation to issue, because there is discretionary leave to issue. and i know a few people that have been given discretionary leave based on zambrano and article 8. so until HO releases a guidiance that is if they will because i doubt they will, DLR is the only documenttion HO can issue based on zambrano.

because like mcarthy, i suspect it already been implemented in that the new EEA form asks about dual nationality.

HO/UK courts have to follow ECJ judgment, even if they don't give a guidiance.

[Directive/2004/38/EC]

There is an interesting UKBA to a FOI request on Zambrano: http://www.whatdotheyknow.com/request/7 ... 3%20v3.pdf
and
http://www.whatdotheyknow.com/request/ecj_rulings

[quote="UKBA"]I am able to disclose the following information. There is currently no provision under the
Immigration Rules to grant a person leave to remain on the basis of their right to reside in
accordance with the Ruiz Zambrano judgement. Therefore no such applications have to date been refused.

Applications made under European law are dealt with in accordance with Directive 2004/38
(â€

[leonex4t5]

I am Leonard Williams...

:http://www.whatdothe...incoming-193719

Very Important information on zambrano, One can take on employment under the zambrano judgment... but as there is currently no documentation to issue, its up to the the employee to be able to convince the employers whilst home office consider the implications. What about if you want to start up a business?

I used the FOI in asking series of questions to the ukba and got an already expected response.

1) Total Number of Applications for Leave to remain Recieved based onthe ECJ's Judgement on Riuz Zambrano since march 2011 to june 2011?
ans: 98.

2)How many were granted leave to remain and How many were refused?
ans: I am able to disclose the followinginformation. There is currently no provision under the Immigration Rules to grant aperson leave to remain on the basis of their right to reside in accordance withthe Ruiz Zambrano judgement. Therefore no such applications have to date been refused.

Applications made under European law are dealt with in accordance with Directive 2004/38 ("the Free Movement Directive") which has, inturn, been transposed into domestic legislation via the Immigration (EuropeanEconomic Area) Regulations 2006 ("the Regulations").

I can confirm that between March 2011 andJune 2011, 98 applications have been received for documentation under theRegulations by the UK Border Agency's European casework teams from personsapplying on the sole basis of Ruiz Zambrano. As the ECJ judgment in RuizZambrano concerns persons who have a direct right to reside under Article 20 of the Treaty on theFunctioning of the European Union (TFEU) and not under the Free MovementDirective, there is currently no provision to issue documentation under theRegulations to persons asserting a right to reside in accordance with the RuizZambrano judgment. This means that no applications have been granted or refusedon the basis of this judgment during the period in question. Instead, those whohave applied for documentation under the Regulations have been advised thatthere is no provision within the Regulations at this time and that theirapplication is therefore invalid.

3)Can a nonEU Parent and Primary carer of a minor british child with
the ECJ's Ruling under EU Law get employed in the uk?

Ans: Whilst the UK Border Agencyis currently considering the full implications of the Ruiz Zambrano judgment, it is clear that the judgment enables those who acquire a right to reside on thebasis of the judgement to also have a right to work. There is nothing currently to prevent reliance on the Ruiz Zambranojudgment from seeking to rely upon it when seeking employment. However, as employers are subjected tothe civil penalties regime evidencing a right to work in the absence ofdocumentation issued by the UK Border Agency may prove problematic in terms ofthe employer discharging their duty in law to ensure they only employ those whohave a right to work in the UK

[jaskamalman]

thanks for advice.

[jaskamalman]

thanks for advice.

[chairbaba]

The UKBA has possted the below on their website, pls read and comments, may I ask or submit that the fact that only British Citizens are mentioned does not preclude EU citizen [minors too] from applying since it specifically has to do with Zambrano

21 September 2011

The Court of Justice of the European Union (ECJ) recently handed down judgment in the case of Ruiz Zambrano (C-34/09). This judgement creates a right to reside and work for the sole carer of a dependent British citizen when that carer has no other right of residence in the UK and removing the carer from the UK would mean the British citizen would have to leave the European Union. The UK Border Agency has been considering the effect of this judgement and whether any changes are required to our policy or the law as a result. Until now, we have not accepted applications we have received on this basis as there is currently no provision within the Immigration (European Economic Area) Regulations 2006 (the regulations) to issue documentation on this basis.

We will amend the regulations in due course to enable a person to be issued with a document confirming that they have a right to live in the UK as a result of the Ruiz Zambrano judgement. However, in the meantime, we will issue a certificate of application to those who are able to show:

evidence that the dependent national is a British citizen;
evidence of the relationship between the applicant and the British citizen; and
adequate evidence of dependency between the applicant and the British citizen.
This certificate will enable a person to work in the UK while their application is outstanding. Once changes to the regulations are made, the application will be given full consideration and documentation will be issued under the regulations to those who meet the final agreed policy.

Employers can accept this certificate of application, in combination with a positive verification from our Employer Checking Service, as proof of right to work in the UK for up to 12 months. This document combination comes under entry 5 of List B within the 'Comprehensive guidance for employers on preventing illegal working', and will provide an employer with a statutory excuse against payment of a civil penalty for up to 12 months.
Further information on the scope and processes referred to can be obtained from the Customer Contact Centre on 0845 010 5200.
Further information on the laws on preventing illegal working can be obtained from the Sponsorship and Employers' Helpline on 0300 123 4699.

[Bob44]

The UKBA has possted the below on their website, pls read and comments, may I ask or submit that the fact that only British Citizens are mentioned does not preclude EU citizen [minors too] from applying since it specifically has to do with Zambrano

21 September 2011

The Court of Justice of the European Union (ECJ) recently handed down judgment in the case of Ruiz Zambrano (C-34/09). This judgement creates a right to reside and work for the sole carer of a dependent British citizen when that carer has no other right of residence in the UK and removing the carer from the UK would mean the British citizen would have to leave the European Union. The UK Border Agency has been considering the effect of this judgement and whether any changes are required to our policy or the law as a result. Until now, we have not accepted applications we have received on this basis as there is currently no provision within the Immigration (European Economic Area) Regulations 2006 (the regulations) to issue documentation on this basis.

We will amend the regulations in due course to enable a person to be issued with a document confirming that they have a right to live in the UK as a result of the Ruiz Zambrano judgement. However, in the meantime, we will issue a certificate of application to those who are able to show:

evidence that the dependent national is a British citizen;
evidence of the relationship between the applicant and the British citizen; and
adequate evidence of dependency between the applicant and the British citizen.
This certificate will enable a person to work in the UK while their application is outstanding. Once changes to the regulations are made, the application will be given full consideration and documentation will be issued under the regulations to those who meet the final agreed policy.

Employers can accept this certificate of application, in combination with a positive verification from our Employer Checking Service, as proof of right to work in the UK for up to 12 months. This document combination comes under entry 5 of List B within the 'Comprehensive guidance for employers on preventing illegal working', and will provide an employer with a statutory excuse against payment of a civil penalty for up to 12 months.
Further information on the scope and processes referred to can be obtained from the Customer Contact Centre on 0845 010 5200.
Further information on the laws on preventing illegal working can be obtained from the Sponsorship and Employers' Helpline on 0300 123 4699.

this means the zambrano judgement applies to people with British minor citizens in the UK can benefit under this judgement. at the present moment the zambrano judgement doesn't apply to other EU minors living in the UK.

[joshuaaubin]

It said british citizen, it did not say british minor. British citizen include adult and minor, their career can apply.

[ddddddddd298]

It said british citizen, it did not say british minor. British citizen include adult and minor, their career can apply.

zambrano judgment said parent of and sole carer of british citizen...

[joshuaaubin]

It said british citizen, it did not say british minor. British citizen include adult and minor, their career can apply.

zambrano judgment said parent of and sole carer of british citizen...

It said on the website british citizen, in respect what zambrano say, uk include adult on its own that is why they say career of british citizen including adult british that cannot exercise treaty right in another eu due to incapacity to work and lack of self sufficient, the career can apply, read the case law 19 sept. before it was publish on their website, you can find that at the top of this forum if you care to read before quoting me wrong, that was the ukba interpretation of zambrano, it include adult and minor, their career.

[pads]

Hi

My Grand daughter is a british citizen currently living in America with her mum.

would this ruling apply to my Daughter in law, or would they both have to be in Britian to benefit from the ruling.

My grand daughter can not travel here by herself because she is a baby less than 1 year old

Love pads x

[joshuaaubin]

Uk rules for people living in uk and usa rules for people living in usa.

[daddy]

[@howlong.
My case is going on fine, remember i used EEA2 form for the zambrano application, they said they are currently not issuing any documentation inlight of zambrano, they however did not refuse me, in otherwords telling me wait for guidance, i see this as unlawful and a ground for judicial review, but i couldnt be bothered so i used the FLR(O), quoted, Zambrano, ZH tanzania, Chuwamba, Article 8, i sent the application on 02/06/2011. one month gone, and also my case has some very compassionate grounds so my mp is writing to them to make a prompt decision.hi leonex
How long did it take for the HO to reply you that they r currently not issuing zambrano. Did you get Certificate of Application after sending the EEA 2?

Howlong, Pls you could share with us the position of your Zambrano application, have you recieved certificate of application yet? some of us are about to apply. Pls, share with us.

[pads]

Yes can you update us please.

Daddy will send you a pm x