Non-EU Parents with EU Citizen - Ruiz Zambrano Case

[eea_noneu]

Hi All,

We both parents are Non-EU nationals and our minor baby (5 years old) is Irish Citizen. We (Parents) both are on Tier 1 General and Tier 1 General Dependent visa respectively and into 5th year. By March 2012 my visa stay with 5 years finishes. But there are several back and forth journeys happend in the first year, so I may need to extend my visa again for getting eligibility for settlement 5 year period.

Here lot of UKBA fees involved for each application, 1st If I try for settlement its almost £1500 and If it refused then again fees for visa extension, then again Settlement application fee after an year, so almost £4000 in fees to UKBA. Apart from fees to UKBA, I need to go through all the PBS system even for settlement.

My baby i.e Irish Citizen is attending school in the UK.

I am considering to use Zambrano case and EU Law to beat the heavy fees charged by UKBA and the new rules to obtain settlement by UKBA. First to switch as a family member and then to settlement.

Can my application will be considered under EEA Family route with new Ruiz Zambrano ruling.

Chen case gives the right to residency for the non-eu parents but Zambrano case gives the right to residency + employment

As per Zambrano ruling the member states are prevented to refuse right to residence and work for Non-EU parents of minor EU Citizen.

Thanks.

[eea_noneu]

Hi,

Members and moderators please comment on my post about you opinions.

It really helps me to make a decision. There are so many people viewed it, but no opinions expressed.

[leonex4t5]

Right now, the only route applicable to you under EU law, is the Chen rule. HOME OFFICE are yet to implement the Zambrano ruling, no guidance have been provided from UKBA as there are lots of debates whether the ruling applies to other EU citizen living in the UK, or just only for British children living in UK.

with my non-legal knowledge, i believe the zambrano ruling does not apply to you in UK, however it does apply to you in Ireland, it will all depend if you have a good solicitor that can argue otherwise in court.

[eea_noneu]

Hi Moderators and Members,

I am doing some research on this and saw Irish implementation of this case. But

Article 18 (ex Article 12 TEC)
Within the scope of application of the Treaties, and without prejudice to any special provisions
contained therein, any discrimination on grounds of nationality shall be prohibited.
The European Parliament and the Council, acting in accordance with the ordinary legislative procedure,
may adopt rules designed to prohibit such discrimination.

It says any discrimination on grounds of nationality shall be prohibited.

Ireland says parents of Irish Citizen allowed under Zambrano. If they are refusing parents of the other EU member nationals, it is against the spirit of Article 18 TFEU.

What you guys think??? Can Zambrano ruling will be interpreted as parents of EEA Citizens will be allowed to reside in the host member state??

[leonex4t5]

there is no discrimination interms of the zambrano judgement, it clearly don't apply to other EU minor children in the UK, the judgement will only be applicable where the Directive 2004/38 does not apply.


you said:
(It says any discrimination on grounds of nationality shall be prohibited.

Ireland says parents of Irish Citizen allowed under Zambrano. If they are refusing parents of the other EU member nationals, it is against the spirit of Article 18 TFEU.)

to agree with this statement will be contradicting, as provision interms of CHEN has been made for an EU child residing in a host state. i will give you an example, a uk national is a EU citizen, before Singh judgement, one could argue that it was a discriminable decision not to allow uk national who are EU citizens access EU LAW in the UK(their country of nationality). Surrinder Singh came and made provision for UK citizens to move and excercise their treaty right and then come back to the UK to access the EU LAW. so right now one can saw its discriminating because there is a provision for them.

someone in your position can not hold the home office to random based on Article 18 (ex Article 12 TEC) because there is CHEN available for you.

Zambrano came to stop eg: discrimination for British minor kids, to be able to reside under EU law in Britain.

Having Said all these, it is still worth arguing in court using Article 20, zh tanzania and situations like length in the uk, child school history, ties in the UK, these things can put you in a very strong ground for a DLR. and the courts are there to back you if you have a very case.

[leonex4t5]

http://www.bailii.or...po_nigeria.html

a case where zambrano and tanzania were refered to... interesting case as the child in question was only born in the uk and not a british citizen at birth but later gained citizenship before the upper tribunal hearing.

[vinny]

Omotunde (best interests - Zambrano applied - Razgar) Nigeria [2011] UKUT 00247(IAC)

[eea_noneu]

Hi leonex4t5,

Thanks for your comments.

I interpret the Chen case as it helps rich NON-EU parents, where they doesnt need to work in UK. But all Non-EU parents of EU Citizen child wont be rich to meet that criteria.

Chen case given Residence. Zambrano case given Residence + Work rights Zambrano given work rights to work and support his family. Otherwise his family should live on social benefits.

Hi all experts please start throwing your comments about this. It really helps me to prepare to avoid PBS route for FLR/ILR.

[eea_noneu]

One other reminder to you is most of these cases involved with parents legal residence.

In my case we both the parents are legally residing in UK under Tier 1 General route. I just want to use this route to avoid heavy fees involved with FLR and ILR.

[leonex4t5]

EEA_NONEU,

like you say... "I interpret the Chen case as it helps rich NON-EU parents",
thats your interpretation. but not the EU interpretation, these as just my non-legal views, and i stand to be corrected. you need a very good legal rep, to help you put your case together.

personally, CHEN rule or FLR (based on Article 8, ZH tanzania Article 20&21 TFEU) would be your best options. Even as at now, HOME OFFICE are still considering the judgement and are not issuing any documentation from the European Department, however making an application with the FLR(O) and mentioning the above caselaw can get you discretionary Leave, so my advise is for you get a good solicitor to put this together.

[leonex4t5]

Oh just seen that you have leave to remain under tier 1. well you just have to spend the fee for the ILR application.because you will spend more proving zambrano is applicable to you, and waste of time too.

well you can wait and see what the Home Office have to say about the zambrano judgement.

GoodLuck

[howlong]

http://www.whatdotheyknow.com/request/e ... to_nationa

kindly take a look at this link.Quite interesting!

Chen ruling
It gives you leave to remain in UK as long as you could prove being self-sufficient and with comprehensive health insurance. But at the moment it does not confirm permanent residence after completing 5 yrs of residency under chen as according to HO, parent under chen is not considered as family member .Meanwhile, in this case it ruled that chen should be treated under EU as in M (Chen parents: source of rights) Ivory Coast [2010] UKUT 277 (IAC).(check on this case to read further) i.e The rights of entry and of residence of parents of EU national children derived by the ECJ in Chen are a matter of EU free movement law. National courts are therefore obliged to recognise them, and national legislation cannot reduce them.
Yes the main concern here is restriction on work.
Zambrano ruling:
it permits residency and work but it is greatly argued that it only apllied to British child.However, there are quite a number of articles and solicitors that argued that it does not limit only to British child but also to EU national child but for sure Zambrano definitely applies to british child.Most importantly, it depends on how HO intrepretes Zambrano. It may appy to all Union citizen child and may not.
It would be very great if it turns out to be applicable to all Union citizen children but do not raise too much hope.

[howlong]

In my opinion it is best to choose an option which permits work i.e workpermit while waiting for HO to implement zambrano. it is really hard under chen case as i had experience it myself. i have been on chen since it came in force.

[leonex4t5]

howlong, i just thought about something, if you eu child has a permanent status, and you currently have a valid leave to remain,(resident card under chen), why not look into the access to child application within the immigration rule, if granted its for one year and then ILR afterwords?

[howlong]

Hi leonex,i though access to child is for parent who has divorced but with british child/child resident in uk
by the way, how's ur application going on?all the best to you!

[eea_noneu]

Hi howlong,

It is interesting to see your reference case... does that ECJ ruling means EEA Family permit in Chen cases? And you pointed about access to child under immigration laws, which I want to avoid, otherwise heavy UKBA fees bit comes. I heared that if I use EEA2 which is no fees to UKBA.

Normally how long the UKBA takes to update guidances. Ireland it seems fought for against Zambrano in Luxembourg and after the Grand Chamber ruling it came back to Dublin to implement it immediately.

leonex4t5 what is the meaning of EU Child permanent status?

[leonex4t5]

eea_noneu,
You cant use eea for any application other than for the directive 2004/38, 2006 regulations(application for a 5yrs resident card). cant be used for any uk immigration application.

EU permanent status is when an EU citizen resides in a host country for 5yrs, hence in howlong case her irish children who may have lived in uk for 5yrs.

@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.

Also i claim JSA using zambrano, that is pending. i did that because the case law is binding to national courts, so even if JSA refuses, i will have a right of appeal and go to the tribunal. and the courts have already started implementing zambrano. remember zambrano case was original refered by their employment department in belgium, when zambrano was refused benefit.

it came to my attention that its not only the home office trying to implement it, but the whole uk government body, and so it doesnt stop me from seeking JSA. im just being technical.

[eea_noneu]

Hi leonex4t/howlong

According to the reference case M (Chen parents: source of rights) Ivory Coast [2010] UKUT 277 (IAC) , the british court ruled that

The rights of entry and of residence of parents of EU national children derived by the ECJ in Chen are a matter of EU free movement law. National courts are therefore obliged to recognise them, and national legislation cannot reduce them.

So if it is under EU Free movement law, and the judge in this case asked to issue a EEA Family permit, is this same permit applies to Chen cases too??? where I assume the UKBA not yet included in its case worker guidence???

[howlong]

hi eea_noneu,
not quite sure how long it will take but keep checking with the updates of ukba reply to the questions imposed.

as for the chen visa and the ivory case, it is really best to consult a solicitor before proceed on as i m still unsure how ukba would response but it is worth including in your argument for a family permit.

in order to confirm pr for your child, he has to exercise treaty right as self-suffient person in uk .in this case,chen visa is applicable.but it is not actually a pr, it is just a resident document to confirm he/she (child) has exercise the treaty right and there is no time limit. the child will not be issued pr if the parent does not quality for one. before issuing this,the child will be issued a resident permit which valid for 5 yrs i.e during the exercising period of treaty right.
but after all the child the right to reside in uk as long as he/she wishes.


leonex,
i have spoken to a solicitor that ho will probably issue DLR for non national parent of british child applying zambrano. it is great for DLR as after 6 yrs will be granted ILR and most importantly there is nowork restriction.i di believe u will have great chance!good luck!keep me posted

[leonex4t5]

thanks howlong,
Yes am aware of DLR for now on application based on zambrano, that maybe or may not be the case when the HO implement it. so i am just waiting for my DLR in the post. lol hopefully.

and i wish you goodluck in your application as well.

[Obie]

I am not quite sure the case above, Chen Children Ivory Coast, could be read as conferring a right to work for Chen children.

The issue dealt with was whether or not it is an Entry clearance that should be issued or an EEA family permit, and whether or not section of the immigration rules such as 320 (11) or 320(7A) can be used to refuse entry clearance to people in Chen case. That was my understanding.

I believe Zambrano should be applicable to Chen cases.

The reason i say so is because, the rights provided for in the treaty should be exercised without detterance.

If parent of Chen children will have a right to work in their children's country of nationality, what would be the incentive for moving with their children in exercise of their rights under Chen and the treaty.

Chen will become illusory, as parent will be reluctant to move with their children, in exercise of their children's right and the right of this children will have no meaningful use.

If the OP's Irish child has lived in the UK for 5 years, she could register him/her as British, and then apply under zambrano.

[leonex4t5]

Obie i quite agree with your view with the ivory coast case... i thinkit was strictly ECO case in terms of EEA family permit and refusals.

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 personally believe CHen should be allowed to work because the ukba should not reduce the rights from freemovement. having said that i believe chen should be allowed to work, because its discriminating interms of nationality because Zambrano: work is permited in the uk because child is british.

having said that zambrano judgement does not apply to chen case directly, but inlight of zambrano its can be argued that the ukba are wrong in refusing to grant work to chen EEA applications.

also i wanted your view on excersing the zambrano right with other government body in the uk, like the DWP... since the home department is refusing to issue documentation on zambrano to applicant. and also the fact that the judgement is bound by national court, a situation where DWP refuses benefit claim and case ends up at the tribunal?

[eea_noneu]

Hi howlong/leonex4t and all other members,

As we the Non-EU parents of EU Citizen minor child (Irish Citizen)

Can we rely on these three cases together ???

• Zhu and Chen, Case C_200/02 (19 October 2004) ---- ECJ
  M (Chen parents: source of rights) Ivory Coast [2010] UKUT 277 (IAC) --- British Court
  Zambrano case ----- ECJ

In the second case Judgement it talks about EU Directive and EU Law, and the Judge ordered to issue an EEA Family Permit.

Hi leonex4t,
According to M (Chen parents: source of rights) Ivory Coast [2010] UKUT 277 (IAC) If my application is under EU Directive and EU law and for EEA Family Permit is it not using EEA2 application ?? which eventually with no fees to UKBA and gives residence and work rights??

This groups members comments are always welcome and indeed I am in need of all the different opinions before making a decision between SET (O) / FLR under Tier 1 / EEA2



Thanks.

[leonex4t5]

that judgement is for entry clearance, not resident card. EEA2 is not for family permit, its for resident card. Family permit is for non EU family member of EU citizen outside the uk. resident card is for non eu family member of EU citizen already in the uk.

if you make an EEA2 application, then only chen applies at the moment, which from your previous post you don't want as it doesn't allow you to work.

you cant use zambrano directly, as you would need a very good solicitor to challege the interpretation at the courts.

i'm not quite clear on what your immigratiion status is. you are on tier 1 for how long? do you currently qualify for ILR?

and also my daughter is british, so zambrano is pretty straight foward in my case.

[eea_noneu]

Hi leonex4t5,

Are the rules between in-country/out of uk applications different here.

For me residence card also suffice as long as it gives me right to residency and work.

As I said in my first post I am into my 5th Year of Tier 1 which expires in March 2012. In the first year I had lot of trips back and forth between London and Dublin at one occasion 130 days. So I am not sure that my ILR application will be a success. So then I need to choose to go for FLR , after an year at the end of 2012 again ILR application.

each time me and my wife together need to pay fees £1300 + £ 850 = £2150
altogether for 3 times it becomes £6450.

Thats why , If I found a way to go through EEA2 I can save lot of money. To save money is the main reason and If I manage Residence card on EEA2 we all can travel visa free. Last time when I want to visit Paris I spent £300 for 2 Schengen visas.


Thanks.