Iyiola Solanke
EU law is important not only for nationals from the EU living in the UK, but also for nationals from beyond the EU who live in the UK to bring up their British citizen children. For the sake of their children, attention must be paid to ensure that their right to reside in the UK remains intact after the UK leaves the EU.
Almost everybody is by now aware of the perils of Brexit for the 3 million citizens and their families from other EU member states whose residence in the UK is governed by EU law. Much has been said in relation to securing their rights, such that a Brexit Withdrawal Agreement is unlikely to materialise before their position is secured. By contrast, nothing has been said of the dangers facing British citizens whose parents and carers likewise rely on EU law in order to reside lawfully in the UK. For these citizens, overwhelmingly children and predominantly black, only the doctrine set out in the Zambrano case stands between them and foster-care or adoption.
In 2009, the Zambrano case created a derived right of residence for non-EU/EEA citizens when the Court of Justice of the European Union (CJEU) held that it would be unlawful for a member state to deport the carer of an EU citizen, if the deportation thereby compelled the EU citizen to also leave the territory of the EU. This, the CJEU argued would deprive the citizen of the ‘genuine enjoyment’ attached to EU citizenship, as set out in Article 20 Treaty on the Functioning of the European Union (TFEU) TFEU. In a ground-breaking case, the CJEU held that ‘genuine enjoyment’ requires residence in the EU and thus the residence of the primary parent or carer in EU.
The Zambrano ruling thus enables many non-EU citizens to remain in the UK with their British national children, albeit only until the children reach the age of 18. According to Home Office statistics, the majority of those who have done so are women from Nigeria, Jamaica and Ghana, some of whom are fleeing violent relationships with British men. Neither fleeing domestic violence nor gaining Zambrano status is an easy task. The key factors for the latter are first, demonstrating compulsion and second, securing access to benefits.
Establishing the right to stay using the Zambrano doctrine has been made difficult. Despite EU law, the Home Office has interpreted ‘compulsion’ in a restrictive way that precludes a successful application for this status. Regulation 15A of Regulations 2006 requires the carer to establish as a fact that the UK citizen will be forced to leave the EU. In Yekini v Southwark [2014] EWHC 2096 (Admin), the then Home Secretary, one Theresa May, set out that the burden of proof for demonstrating compulsion falls upon the applicant. In that case, her view was that the evidence was inadequate – there was no ‘compelling reason presented as to why the British citizen child’s father could not assume full parental responsibility for his care’.
The restrictive approach has been supported in the courts. In Hines v Lambeth [2014] EWCA Civ 660 Vos LJ set out that ‘compulsion’ is a practical question to be based on departure as a factual consequence. While the reviewer was called upon to consider the welfare of the British child, this was not a paramount concern. The CJEU has recently set out its own guidelines on the ‘best interests’ of the child – in Chavez-Vilchez, it said the national court must consider factors such as the age, emotional and psychological well-being of the child.
A per se impairment of the quality of life or standard of living of the child would not demonstrate compulsion – it all depends upon the extent of the impairment. It is insufficient to demonstrate an assumption that the citizen would leave. The case of Ayinde & Thinjom perhaps demonstrates most clearly the pernicious approach to compulsion – in this case it was decided that an elderly bed-ridden British citizen would not be compelled to leave the EU because he could not walk and was therefore as a matter of fact unable to leave. There was no consideration of whether it would be reasonable for his carer to leave.
Parenting is therefore less a citizenship right and more a privilege for these Black British children, simply because of the nationality of their parents. The privilege is not one to be enjoyed, for residency based on this status has dramatic consequences. In keeping with its declared policy of ‘hostility to immigrants’, the Coalition Government in 2012 introduced the ‘Zambrano Amendments’ which amended the Social Security Regulations 2012 (SI 2012/2587), the Allocation of Housing and Homelessness Regulations 2012 (SI 2012/2588) and the Child Benefit and Child Tax Credit Regulations 2012 (SI 2012/2612) to automatically exclude all Zambrano carers – including those in employment – from a series of basic means-tested benefits including Job seekers allowance, Employment & support allowance, Income support, Pension credit, Housing benefit, Council tax benefit, Child benefit, Child tax credit. Zambrano parents and carers are therefore treated like tourists, as if they are not habitually resident in the UK, forced to rely on emergency resources provided by local authorities.
The courts have to date again turned their backs on the British children who are condemned to a childhood of destitution – and perhaps even life of poverty – by this policy. Elias LJ said in Harrison v Secretary of State [2012] EWCA Civ 1736 that
‘… The right of residence is a right to reside in the territory of the EU. It is not a right to any particular quality or life or to any particular standard of living. The right is not impeded if residence remains possible but the quality of life is diminished.’
In Sanneh and Others [2015] EWCA Civ 49, the Court of Appeal went even further to state beyond all doubt that ‘genuine enjoyment’ does not ‘require the State to guarantee any particular quality of life.’ Writing for the Court Arden LJ seemed to have forgotten about the rights of the child when she wrote that the member state will not undermine the right to reside of the Zambrano carer conferred by EU law by failing to meet the basic needs of the carer.
In effect, the government has condemned these black British citizens to a life more impoverished than that of their peers, simply because of the nationality of their parents. They currently have no quality of life and if nothing is done are likely to be in a more precarious situation under UK law after March 19, 2019.
It is hard to imagine that this state of affairs will improve after Brexit. Indications thus far – the strongest perhaps being the stance of May as Home Secretary – suggest that the government will do all it can to forcibly remove these carers and their children as quickly as possible. It is therefore imperative to protect these child citizens and ensure that residence rights are guaranteed not only for EU citizens living in the UK, but also for non-EU citizens living in the UK to bring up their British citizen children. These children not only have a right to live here in peace and relative prosperity with their parents but also, after all, are likely to stay here in the land of their birth – they have nowhere else to go.
The courts have a final chance to speak up for the affected British citizens – the Supreme Court has allowed an appeal against the lawfulness of the Zambrano Amendments to proceed. A decision was delayed due to the Miller case but is due this summer. That may solve one problem for the children but it is up to activists, academics and citizens to ensure that residency rights for their parents are anchored in national law after Brexit, preferably as primary legislation.
Iyiola Solanke is a Professor at the School of Law at the University of Leeds, where she holds the Chair in EU Law and Social Justice, and a Visiting Professor at Wake Forest University Law School. She researches and teaches on EU law, Discrimination Law and Alternative Dispute Resolution. Her recent book, Discrimination As Stigma: A Theory of Anti-Discrimination Law, was published by Hart in 2017.