Source: Free Movement
This is the first in a short series of posts about the Zambrano judgment. Next time: Appeals in Zambrano cases.
On 8 March 2011 the Court of Justice of the European Union (CJEU) gave judgment in the Zambrano case. On the Free Movement blog we said we thought it may mark the watershed between the history of European Community free movement law and the future of unconditional European Union citizenship rights.
So, what did the UK Border Agency make of this revolution in thinking?
The Agency’s reaction was predictably slow. On 21 September 2011, nearly six months after the judgment, UKBA finally recognized that judgment had ‘recently’ been handed down in Zambrano and belatedly formulated a holding position. A narrow reading of Zambrano was adopted and it was said that if a person met the provisional criteria then they would be issued with paperwork confirming a right to work and non-removal, but no formal status papers would be issued.
Essentially, UKBA allowed applications to be made under Zambrano but did not declare the formal rules, criteria or evidence that would be required for the applications to be granted or, for that matter, refused. Further, no application would actually be ‘granted’ as such, merely declared valid or invalid. If considered valid, a ‘certificate of application’ would be issued enabling the bearer to work and to remain in the UK. If considered ‘invalid’ the applicant would be notified but no further action would be taken and UKBA would not consider that such a decision would generate a right of appeal.
The criteria for making a valid application were (and remain) that the applicant submit:
- evidence that the dependent national is a British citizen;
- evidence of the relationship between the applicant and the British citizen; and
- adequate evidence of dependency between the applicant and the British citizen.
A little bit of further information later emerged from an internal policy document on Zambrano. The potential scope of Zambrano was decided within UKBA to be as follows:
6. Firstly, it has been agreed that the judgment applies only to cases in which the dependent Union citizen is within their state of nationality. For the United Kingdom, this means that the judgment applies only to cases involving a dependent British citizen.
7. Secondly, it has been agreed that the judgment does not apply in cases where dependency is simply financial.
8. On this basis there are then two classes of potential beneficiary:
- A third country national adult upon whom a British citizen child is dependent
- A third country national adult upon whom a British citizen adult is dependent
For the first of these two categories of beneficiary (applicant is adult dependent on child) the criteria were said to be as follows:
9. … In order for an applicant/appellant to demonstrate that they are a potential beneficiary within this category then the following criteria need to be met:
- there is evidence that the child is under the age of 18, and
- there is evidence that the child is a British citizen, and
- there is evidence of a relationship between the child and the parent/guardian/carer, and
- there is evidence of the child’s dependency on the third country national
parent/guardian/carer (care responsibilities, court orders are examples)
10. In cases where there is another parent/guardian/carer upon whom the child is, or can become, dependent then this would fall out of scope. This is because removal of the third country national in such circumstances would not oblige the child to leave the EU because an alternative carer is available.
For the second category of beneficiary (applicant is adult dependent on adult) the following was said:
11. In relation to this category of applicant/appellant clear medical evidence, for example of a severe physical and/or mental disability, supported by (a) evidence which shows the adult British citizen is wholly dependent upon the third country national for their care and (b) evidence that no alternative care is available. Such cases are likely to be rare and will require consideration on an individual basis.
Both the initial guidance and the internal policy document suggested that new rules would be laid in due course, in the near future, by the end of 2011. Little more has been heard and the rules have not yet been laid at the time of writing in mid 2012.
The form to use for making any Zambrano application has been confirmed by UKBA to be a Form EEA2. As with all EU right applications, this is not compulsory but it is advisable. It is also tactically useful, as seen in the next post in this mini series, on Zambrano appeals.
Source: Free Movement
The cases of Sufi and Elmi v UK (Applications nos. 8319/07 and 11449/07) have been allowed by the European Court of Human Rights. This is a major judgment on return to Somalia and the conditions there. The press release can be found here and the judgment here (Word version here, BAILII version here).
In summary, the Court holds that conditions in Mogadishu breach Article 3 for virtually everyone, although there might conceivably be some people with high level connections that would be safe (para 250). For most, and certainly for those who have been outside Somalia for a long time, return to Mogadishu is therefore unsafe.
The Court also finds that it might be possible for a returnee to relocate to another, safer part of Somalia from the airport (para 271). This depends on the area, and the Court was not able to make findings on every bit of Somalia. Evidence will therefore be required in individual cases. However, the Court then goes on to eliminate the possibility of relocating for many individuals by finding that any returnee who has been outside Somalia for a long time cannot relocate to (or through) areas controlled by the al Shabaab group (para 277). Al Shabaab control large areas of Somalia.
The Court holds that conditions in refugee and Internally Displaced Person (IDP) camps are in breach of Article 3 and it is therefore not possible to return a person who would have to relocate to such a camp. The approach of the Court in MSS v Belgium and Greece is preferred in this context to that in N v UK because the situation arises from the actions of parties to the conflict in Somalia, not from simple lack of resources (para 283).
Interesting other findings include that a fresh claim was an inadequate alternative remedy for the claimants in this case (para 207-08), that the failure to apply for reconsideration in one of the cases, on legal advice, did not mean that that claimant had failed to exhaust all domestic remedies (para 209), that the report of the fact finding mission to Kenya is worthless because it is impossible to evaluate the quality or reliability of the sources used (para 234), and that Article 3 of the ECHR broadly incorporates the type of harm envisaged by Article 15(c) of the EU’s Qualification Directive (para 226).
This latter finding is interesting and perhaps problematic for the future, given that in the Qualification Directive cases advocates have argued that Article 15(c) must add something to Article 3 ECHR otherwise it is redundant. Article 15(b) specifically incorporates the language of Article 3 ECHR, so what would be the purpose of the additional language of Article 15(c)? It seems unlikely to happen in practice but there is a possibility of a ‘virtuous circle’ (depending on one’s standpoint, of course) of constantly improving standards of protection, as Article 15(c) QD is argued to be more generous than Article 3 ECHR, then Article 3 ECHR catches up, then Article 15(c) QD becomes more generous again and so on.
Both claimants succeeded in this case on their individual facts.
Posted on the UKBA website (13/08/10)
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By Frances Webber
The UK Border Agency is trialing a controversial isotope analysis to determine nationality.
The UK Border Agency (UKBA) plans to test people’s nationality by isotope analysis, according to an announcement made on 11 September by the Central Operations and Performance directorate. The ‘Human Provenance Pilot Project’, scheduled to run for ten months from 14 September 2009, involves UKBA staff taking samples of hair and nails – on a purely voluntary basis, the note assures us – from persons believed to be making false claims about their nationality when claiming asylum. The samples allow testing of the isotope configuration stored in a person’s body. Additionally, staff will be seeking mitochondrial and Y chromosome DNA.
Mouth swabs will also be used to test whether children brought in by an asylum claimant are the asylum seeker’s children or unrelated.
Isotope analysis has been used to find out where someone has been, since hair and nails retain vestiges of food and water which are traceable to specific places. But it would give a very unreliable indication of nationality. Similarly, DNA testing has been used to establish ethnicity. But nationality is a legal, not a biological category. To use biological tests to establish a juridical category is inherently flawed.
The UKBA claims that the DNA they will take is different from ‘ordinary’ DNA used in criminal investigations, and cannot be used for this purpose by mouth swabs, which will not yield a specific identity but will give an indication of the person’s nationality, allowing other investigations to be made, but this seems disingenuous, since ‘ordinary’ DNA can be taken from the samples.
The use of science to enforce legal distinctions between people has a bad history. Apart from the inevitable echoes of eugenics, Nazis and apartheid, in Britain, the imposition of virginity testing on wives from the Indian subcontinent in the late 1970s led to picketing of Heathrow airport, and the use of X-rays to determine children’s ages was discredited as dangerous as well as unreliable.
True, volunteering a strand of hair or a snip of fingernail or a spit of saliva is obviously not as degrading as virginity tests nor as physically dangerous as X-raying children. And DNA testing is now routinely used by applicants to prove that the children they are seeking to bring in to the country are their own. But the voluntary nature of submission is questionable: As with ID cards, refusal to cooperate is bound to lead to enhanced suspicion and refusal of the application.
Quite apart from the commonplace indignity of never simply being believed, of always being forced to prove the obvious, the danger of these tests lies in their incapacity to establish precisely the fact that is being tested, which, as previously mentioned, is a legal, not a biological category. Many British citizens, born and bred in far-flung corners of the world, would ‘fail’ a human provenance test. Many Somalis have long resided in Kenya, Ethiopia and other east African countries: would their provenance be ‘proved’ as Kenyan or Ethiopian? Isotope analysis has been used in archaeology, to establish the regions where people lived, and in recent criminal investigation, to trace a murder victim’s movements around the world. But to extend its use to seek to establish nationality, to use it in such a contentious area where the price of error is possibly death, is surely unacceptable.
If there are studies of the reliability and efficacy of isotope analysis in this area, UKBA should publish them before proceeding. It is indefensible to announce such a dangerous and contentious project at only three days’ notice.
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No time for a proper post on this new case from the tribunal, NA & Others (Tier 1 Post-Study Work-funds)  UKAIT 00025, so I’ll just paste in the headnote, which speaks for itself:
i. The new-style Immigration Rules governing Tier 1 (Post Study Work) contain a Maintenance (Funds) requirement in mandatory terms that admit of no discretion and make no allowance for sickness or other mitigating circumstances.
ii. The effect of para 245Z (e), read together with Appendix C of the Immigration Rules and closely related parts of the Policy Guidance dealing with Tier 1 (Post-Study) Work, is that, to qualify, an (in-country) applicant must show he or she held £800 or over for each and every day of the period of three months immediately preceding the date of application.
iii. This requirement, however, is relaxed for those who applied before 1 November 2008. Under transitional provisions they were only required to provide a bank statement showing a closing balance of £800 or over bearing a date anywhere within the period of one month immediately preceding the date of application.
iv. The requisite amount of £800 or over can be shown in the form of a personal or joint account and may be shown in the form of personal savings held in overseas accounts.
v. Because the relevant provisions require applicants to show that they had the requisite amount of £800 during a three-month period of time immediately before their application, it is not possible to apply s.85(4) of the Nationality, Immigration and Asylum Act 2002 so as to enable them to succeed on appeal by proving they had the requisite funds for a period of time (wholly or partly) subsequent to the date of application.
vi. However, until s.85A of the 2002 Act is brought into force (subsection 85(4)(a) of which stipulates that in respect of appeals in Points Based System cases the Tribunal may consider evidence adduced by the appellant only if it was submitted at the time of applying), it remains possible for appellants to satisfy the requirements of para 245Z(e) by providing on appeal evidence in specified form showing that they had £800 or over in personal savings for the period of three months immediately prior to the date of application.