QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF HANA ZEWDU||Claimant|
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT||Defendant|
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Mr Simon Murray (instructed by the Government Legal Department) appeared on behalf of the Defendant
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MR JUSTICE GREEN:
A. The Issue
B. Relevant facts
(1) The father's tax records and position: The defendant wishes to consider whether HMRC records reveal that the father has links with the United Kingdom which are inconsistent with his avowed claims that he resides in Jamaica and could not, or would not, care for the child here in the United Kingdom.
(2) The child's present schooling arrangements: The defendant wishes to check whether from the perspective of the school the claimant is the present carer of her son.
(3) Other possible carers: The defendant wishes to consider whether there is anyone else in the United Kingdom who might act as a carer for the child upon the hypothesis that the mother was removed.
D. The Claimant's "Zambrano" desired residence right
"C was and is entitled to recognition of her EU rights, not least since her Zambrano rights run for the duration of [the child's] minority, whereas the leave presently granted by the Decision was limited to 30 months, expiring on 30.11.2015. Had C's Zambrano rights been recognised she would have been granted a residence card valid for 5 years, which right would be effectively automatically renewable thereafter. Instead, C will be required to make a charged application for further leave to remain prior to 14.11.2015 and meet the requirements of the Immigration Rules."
"Accordingly, the answer to the questions referred is that Article 20 TFEU is to be interpreted as meaning that it precludes a Member State from refusing a third country national upon whom his minor children, who are European Union citizens, are dependent, a right of residence in the Member State of residence and nationality of those children, and 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."
MR TOM DE LA MARE QC: The last matter is just this - and what my Lord thinks appropriate to do with it I am very much in your hands - it is plain that the continuing authority of AB is being used and, whether rightly or wrongly, my Lord has not decided, as a break upon other claims of this kind. That is regrettable in circumstances where that case itself was settled on appeal. One suggestion that does occur to me is perhaps that my Lord could direct informally that the Secretary of State at least brings to the attention of anybody bringing a look alike case the fact of that settlement and the fact of this settlement, so that the court is fully appraised.
MR JUSTICE GREEN: I am aware that you are asking me to pontificate on various matters.
MR TOM DE LA MARE QC: Of course I was. I was going to chance my arm shamelessly. It is a very unsatisfactory state of affairs.
MR JUSTICE GREEN: I see that. I read the judgment yesterday with some interest. I decided, for better or for worse, it was better simply to deal with this case on the facts and not engage in ex cathedra statements about the law, however interesting they may be. I declined implicitly your invitation, try-on though it was, Mr De La Mare.
MR TOM DE LA MARE QC: Try-on though it was, the point nevertheless remains that something needs to be done by way of a health warning in the attachment of this particular case--
MR JUSTICE GREEN: Someone is going to have to grapple with that point.
MR TOM DE LA MARE QC: Indeed. All I really seek at the moment is some undertaking, or a matter of that kind, that the Secretary of State is going to bring material fixtures about that litigation to any future litigant's attention, particularly if, as in that case, the litigant is unrepresented. The fact that the case was settled on appeal, the fact that the Secretary of State has chosen not to pursue what is, on the analysis of his SGR, the in principle answer to the entirety of the claim that we have advanced and instead chosen to settle this litigation, is at the very least material that should be brought to any future court's attention and indeed any unrepresented litigant's attention.
MR JUSTICE GREEN: What I will simply direct (as this judgment, as other Admin Court judgments, will end up on BAILII) is this: the transcript of this judgment will simply include the observations that you have just made so that it will be in public domain. I do not think, so far as I am concerned, it is appropriate for me to try and even indirectly express a view on how what may be a vexed issue is going to be played out. There is no harm in the transcript being available so that it has at least some sort of oxygen of publicity.
MR TOM DE LA MARE QC: If nothing else, that will act as a Lord Denning 'red hand' and no doubt an endorsement or advertisement gratefully received by my clerks. I think that is the most one can do in the circumstances to draw that matter of concern to wider intention. I am grateful. Apologies on behalf of us all for the flurry of material.