Both Zambrano and McCarthy concerned cases where the applicants sought to rely on EU law in circumstances where there had been no movement to another member state. Directive 2004/38 was not applicable to them as in the language of Article 3(1) the directive applies only to Union citizens who move to or reside in a member state other than that of which they are a national and to their family members who accompany or join them. However the ECJ has reached different outcomes in each case.

The case of Ruiz Zambrano concerned a Colombian national and his wife of the same nationality who were failed asylum seekers but were however in light of the civil war in Columbia at the time not returned there. Mr Zambrano and his wife had two children who had born in Belgium who acquired Belgian nationality under the laws of that country.

The question in Zambrano was whether the provisions of the TFEU on European Union citizenship were to be interpreted as meaning that they confer a right of residence on a third country national, upon whom his minor children, who were European Union citizens, are dependent - a right of residence in the Member State of which the children were nationals and in which they reside and also exempt him from having to obtain a work permit in that Member State. The Court ruled that Article 20 TFEU is to be interpreted as meaning that it precludes a Member State from refusing such a third country national a right of residence in the Member State of residence and nationality of those children. Further, the member state was also precluded from refusing to grant a work permit to that third country national, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen.

The case of Ruiz Zambrano provided a much welcome extension of EU law. The outcome in Zambrano was that it gave protection to the two Zambrano children by confirming their status as European Union citizens thus giving them the right to reside in Belgium. Importantly, in relation to third county nationals, it gave the parents a right of residence in the member state. In order to avoid the situation where the children having no means of support, might be forced to leave the territory of the Union with their parents, the parents were given a right to work in order to support them. Mere Union citizenship of the children in the member state was sufficient to enable the third country national to be given a right of residence. The focus was on the undesirability of depriving the Zambrano children as Union citizens enjoyment of rights conferred by their status as citizens of the Union

It might possibly have been thought that broadly following Zambarano, British citizens(dual citizenship or not) in the United Kingdom might be able to rely on EU rights without having exercised their free movement rights thus enabling their third country family members to also benefit from associated EU rights and in this way by-pass UK domestic law. This however was not to be case.

Mrs McCarthy was both a national of the United Kingdom and Irish national. She had been born and always lived in the United Kingdom. She was not a worker, self-employed person or self-sufficient person but was in receipt of State benefits. Mrs McCarthy was married to a Jamaican national who had no leave to remain. Applications for a residence permit and residence document were refused respectfully on the basis that Ms McCarthy was not a qualified person and that Mr McCarty was not the spouse of a qualified person. Mrs McCarthy’s appeal of the decision to the Immigration Tribunal and to the Court of Appeal failed, however the UK Supreme Court stayed proceedings in order to refer questions to the Court of Justice for a preliminary ruling. As Mrs McCarthy had applied for a right to reside as a Union Citizen the question was whether Article 3(1) of Directive 2004/38 was applicable to the situation of a Union citizen who has never exercised her right of free movement, who has always resided in a Member State of which she is a national and who is also a national of another Member State. Mr McCarthy had not appealed the refusal to grant him a residence document but had made a further application which had been refused. Mr McCarthy had appealed that second decision to the Tribunal which adjourned his appeal awaiting the final outcome of Mrs McCarthy’s appeal

In ruling that the Directive did not apply to Mrs McCarthy, the Court applied a literal interpretation of Article3(1) of the Directive. Ms McCarthy had never exercised her right of free movement and had always resided in a member state of which she was a national. Article 3(1) was interpreted as meaning that the directive is not applicable to a Union citizen such as Ms McCarthy even if she was also a national of another member state. As Mrs McCarthy was not covered by the concept of 'beneficiary' for the purposes of Article 3(1) of Directive 2004/38, Mr McCarthy was also not covered by that concept either since he could only derive rights acquired through status as a member of the beneficiary ’s family.

Judgement in McCarthy itself provides a justification for the lack of a favourable different outcome as compared to Zambrano. The Court considered that Zambrano could be distinguished on the basis that in McCarthy, the decision by the UK national courts did not have the effect of depriving her as a Union citizen of the genuine enjoyment of the rights conferred by virtue of that status and neither did it impede the exercise of her right of free movement and residence within the territory of the Member States. Mrs McCarthy was not required to leave the United Kingdom, rather she had an unconditional right of residence in the United Kingdom of which she was a national.

One may wonder whether requiring Mr McCarthy to leave the United Kingdom would interfere with Mrs McCarthy's enjoyment of her rights as a Union Citizen as Ms McCarthy may ultimately follow him thus in effect requiring her to leave the Union territory. The answer could be that Zambrano may after all be confined to the situation of third country nationals with dependant children who are Union citizens- Zambrano may have been interpreted broadly in the way it was so as to protect the position of Union citizen children particularly where they are reliant on their parents to support them-both financially and emotionally. It could not reasonably be the case that where Mr Zambrano and his wife were required to leave Belgium that they would leave Belgium without their young children. The children would have no choice in the matter.

A further question arises- if Mrs McCarthy in her known circumstances had been economically active in the UK for example as a worker would it have made any difference to the outcome? This is doubtful as Directive 2004/38 would still not apply since Mrs McCarthy had always resided in the United Kingdom and had never exercised her right of free movement.

In relation to the effect on third country nationals, McCarthy means that those in Mr McCarthy ‘s position are unable to by- pass domestic law and rely on EU law instead in order to obtain a right to reside and work in the United Kingdom. In terms of domestic law, that leaves him having to either fulfil the requirements of relevant immigration rules or place reliance on Convention arguments.

No doubt the UK domestic Courts will soon take the opportunity to set out what they consider is the true ambit of Zambrano.

A Solicitor- Advanced Level 3 Immigration

Wed, 11 May 2011 at 10:18 AM, by acme
I understood ECJ cases such as Metock, Avello, Chen, and Carpenter established that there needed to be a cross-border
link. But not necessarily actual movement between EU states

EU citizens living in another EU state must be exercising
treaty rights such as employed, self-employed, studying,
or self-sufficient.
But these conditions only last 5 years.
Most of Mrs McCarty early life was spent at school, studying.

I don't think(?) its requirement that EU citizens living in another EU state must exercise treaty rights all their life.
is this correct ?

Wed, 11 May 2011 at 10:56 PM, by Alice Muzira
I would agree - Article 16(1) of Directive 2004/38 provides that where the Union citizen has acquired permananet residence in the host member state, the right will not be subject to the conditions in Chapter III of the Directive. Recital 18 of the Preamble to the Directive also provides that once the right of permanant residence has been obtained, that right should not be subject to any conditions. Article 16(4) of the Directive makes it clear that the right of permant residence shall only be lost through abscence from the host member state for a period exceeding 2 consecutive years. Re expusion, an expulsion decision is not to be taken against those who have a right of permanant residence except on grounds of public poliy and public security- Union citizens who have resided in the member state for 10years are not to be subject to expulsion unless the decision is taken on imperative grounds of public security- Article 28.

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