EUN1.12 Does the Ruiz Zambrano judgment affect visa applications?

Amendments have been made to the Regulations to implement the decision of the ECJ in the case of Ruiz Zambrano.   The Zambrano judgment established that member states cannot refuse a person the right to enter or reside and work in the host member state, where:

• that person is the primary carer of a Union citizen who is residing in their member state of nationality; and
• refusal of a right of entry or residence to that primary carer would deprive the Union citizen of the substance of their European citizenship rights by forcing them to leave the EEA.

The right is not a right conferred by Directive 2004/38/EC ("the Directive"), but is a right derived from the right of Union citizenship contained in Article 20 of the Treaty on the Functioning of the European Union ('a derivative right').  As a result someone who has a derivative right is not entitled to all of the benefits arising under the Directive.

A person who meets the criteria for a derivative right does, however, qualify for:

• a right of admission to the UK under amended regulation 11;
• a right to an EEA family permit under amended regulation 12; and
• a right to a derivative residence card under Regulation 18A.

Right to an EEA family permit

A person who has a right of admission by virtue of regulation 11(5) can apply for a family permit to facilitate their admission to the UK.  A person will qualify for an EEA family permit where they can demonstrate that they meet the conditions in regulation 15A and regulation 11(5).

Where sufficient evidence has been submitted to demonstrate that the applicant has a right of admission to the UK, and where that person is not precluded from entering the UK on conduciveness grounds they should be issued with an EEA family permit.

If there is another person in the UK who can care for the British citizen, then a derivative family permit must be refused on the basis that such a refusal would not result in the British citizen being forced to leave the EEA.

Therefore ECOs must assess whether there is another direct relative or legal guardian in the UK who can care for the British citizen and, in the case of a child, who has already established contact.  In making this assessment, the burden of proof remains on the applicant and the standard of proof is the balance of probabilities.  This means the onus is on the applicant to demonstrate that refusal of an EEA family permit would force the British citizen to leave the EEA.  If there is no information to demonstrate this, then ECOs may wish to make further enquires with the applicant at to the status whereabouts of the other parent in the case of a child, or alternative care provisions in the case of a British citizen adult.

Examples of when it may be appropriate to issue a derivative family permit to a primary carer would be where:

• there are no other direct relatives or legal guardians to care for the British citizen; or
• there is another direct relative or legal guardian in the UK to care for the British citizen but there are reasons why this carer is not suitable; or
• in the case of an adult British citizen, there are no alternative care provisions available in the UK.

An example of where a person may be considered unsuitable to care for a child would be where there are child protection issues which prevent this child being placed with this particular relative/guardian - for example as a result of a particular criminal conviction or because of findings in family law proceedings.  Another example might be where the person in question would be unable to care for the child due to a physical or mental disability.

A lack of financial resources or an unwillingness to assume care responsibility would not, by itself be sufficient for the primary carer to assert that another direct relative or guardian is unable to care for a British citizen.  ECOs must start from the assumption that where there is another direct relative or legal guardian in the UK, that they can care for the British citizen unless there is sufficient evidence to the contrary.

Where an applicant has failed to submit sufficient evidence to demonstrate that they have a right of admission under regulation 11(5), the application should be refused.

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