McCarthy versus Zambrano

In the ground breaking case of Zambrano, two Columbian nationals were allowed to live and work in Belgium in order to facilitate their Belgian national children living in Belgium. The case was a clear endorsement of the importance of EU citizenship. It accepted that the parents ought to be allowed to remain to prevent an interference with their children’s EU rights. This was even though the relevant children had never left Belgium and thus, had not exercised treaty rights, the traditional route to allow EU nationals, and particularly their third country national family members, to rely on such rights.

The relevant EU national in the case of McCarthy was a dual Irish/British national born in the UK who had never worked or been self employed in the UK or anywhere else in the EU and relied on State Benefits. She was married to a Jamaican national with no leave to remain in the UK. They had applied for a residence permit for him on the basis of his status as the spouse of an EU national. Heard shortly after Zambrano, it dealt with similar issues. Contrary to the decision in Zambrano, the Court found that Ms McCarthy and her spouse could not rely on EU law as she had never exercised a right of free movement, having not lived elsewhere in Europe. Following this decision, it is important to consider both cases and their decisions and attempt to reconcile or to differentiate them so as to determine the future of this area of law.

Zambrano has clearly opened the door to a number of new grounds for demonstrating residence rights in cases where EU law may not have previously played a role. In addition to the immediate, practical consequences for Immigration solicitors, the case suggested that we may be seeing the start of a new and potentially fast developing area of immigration law.

Zambrano is undoubtedly an important landmark in the evolving area of EU Citizenship. Arguably, the most important feature of the case was that it was not a barrier to residence rights based on EU law that the Zambrano children had not previously resided in other EU states or moved between them. Their ability to remain in Belgium, and to confer on their parents the derived right of residence was entirely attributable to their EU citizenship, and the need to protect the rights that Union citizenship confers. In this case, the protection extended to protect a potential future exercise of Treaty rights, quite a leap from previous precedent. This factor marks out the case as significant.

The approach taken in this respect contrasts strongly with McCarthy. At first glance McCarthy and the specific provisions in the Judgment of the Court suggests that the impact of Zambrano may be limited. In Zambrano, as the relevant EU citizens were children, it was clear that, in the absence of according some right of residence to their parents, they would practically have to leave the EU to live in Columbia, and thus, were arguably being denied the rights accorded to them by virtue of their EU citizenship. On the other hand, Ms McCarthy was not dependant on her non-EU spouse to remain in the UK, as an adult. However, the practical consequences for Ms McCarthy could be similar to Zambrano in that she is unlikely to wish to be separated from her third country national spouse and that may mean she returns to his country of origin, leaving the territory of the EU in the process. The distinction, therefore, is one that the ECJ have chosen to draw, rather then one clearly visible.
The impact of these cases right now is already being seen. The Irish Times reported earlier this month, that on the heels of Zambrano, more than 1000 people had applied for residency in Ireland on the basis of an Irish national child and of the 135 applications reviewed by the Irish immigration authorities so far, all had been successful in light of this case. In our own practice, we are relying on this case in any case featuring British children, adding to the arguments advanced in the judgement regarding domestic law and children in the Supreme Court case of ZH (Tanzania) earlier in the year. For the current time, the importance of Zambrano in cases involving children cannot be underestimated.

What remains to be seen is in the interpretation of these two, especially in the context of adults, seemingly opposite judgements, which will define the future of EU citizenship and the associated rights for citizens and which will be confined to its specific facts? The answer will shape the future of EU law and in turn, may, if Zambrano sets the future tone, radically change the options open to British nationals and their third country national family members. Watch this space!