Scottish Court of Session Decisions

Petitioner: Caskie, Advocate; McGill & Co

Respondent: McIlvride, Advocate; Office of the Advocate General for Scotland

10 May 2012

Introduction

[1] The petitioner is a Chinese citizen who arrived in the United Kingdom in December of 1998. She had leave to enter as a student permitting her to remain until 30 June 2005. Pin Bo Zhang, who later became her husband, arrived in the United Kingdom in 1998 without a valid passport or leave to enter. I understand that he remains in the United Kingdom. The petitioner and her husband married in August of 2003 and have two children, Miao Aaron Zhang, born 19 October 2003 and Zoe Xin Yi, born 17 September 2007.

[2] In May 2011, through her agents, the petitioner applied to the UK Border Agency for a residence card. That application was refused by letter dated 27 September 2011. It was that decision which the petitioner sought to reduce by the present application. In addition the petitioner sought declarator that she had a right to reside and work in the United Kingdom.

Basis of Application

[3] The petitioner's son Miao Aaron Zhang was born in Coleraine, Northern Ireland. On this basis he was viewed as a citizen of the Irish Republic and therefore a citizen of the European Union. Relying on the decision of the European Court of Justice in the case of C-34/09 Zambrano v ONEm the petitioner claimed that in order for her son to continue to obtain the benefits, advantages and responsibilities of the European Union it was necessary for residence and working rights to be granted to his family and that it was unlawful of the Secretary of State to refuse to grant such rights.

Submissions

[4] In the submissions advanced on behalf of the petitioner it was acknowledged that neither she nor her husband had rights of residence in the United Kingdom. It was also acknowledged that neither of her children had acquired United Kingdom citizenship by virtue of being born here. It was acknowledged that the right of a European Union citizen to move to or reside within a Member State other than that of which he or she was a national was governed by EU Directive 2004/38/EC ("the Directive") and that no right of residence had been acquired by the petitioner's son by virtue of those provisions. In order to acquire such a right of residence the petitioner's son would have to fall to be classed as a "qualified person" in terms of The Immigration (European Economic Area) Regulations 2006.

[5] The petitioner's son has never been to the Republic of Ireland. However it was explained that the Republic of Ireland grants Irish citizenship to any child born on the island of Ireland and that the petitioner's child Miao possessed a passport issued by the Republic of Ireland. On that basis he fell to be viewed as a citizen of the European Union.

[6] The contention advanced on behalf of the petitioner flowed from the decision in the case of Zambrano. In that case the European Court of Justice acknowledged that Article 20 of the Treaty on the Functioning of the European Union ("TFEU") conferred the status of citizen of the Union on every person holding the nationality of a Member State. It also acknowledged that the same Article precluded national measures which had the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status. In considering the circumstances of Columbian parents living in Belgium, whose children were Belgian nationals, the court assumed that a refusal to grant a right of residence and a work permit to the parents would lead to a situation where the children, who were citizens of the Union, would have to leave the territory of the Union in order to accompany their parents. Such a refusal would therefore have the effect of depriving the children of the genuine enjoyment of the substance of the rights conferred on them by virtue of their status as citizens of the Union. The Court therefore decided that Article 20 TFEU was to be interpreted as meaning that a Member State was precluded from refusing a third country national upon whom his (or her) minor children, who were European Union Citizens, are dependant, 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.

[7] Although it was recognised that by distinction with the case of Zambrano the child Miao Aaron Zhang was not a national of the country in which an application for a right of residence and right to work was being made reliance was placed on the immigration arrangements which exist between the United Kingdom and the Republic of Ireland.

[8] Section 1(3) of the Immigration Act 1971 provides for what is called "the common travel area" comprising the United Kingdom, the Channel Islands, the Isle of Man and the Irish Republic. A person taking a journey which begins and ends in the common travel area is not subject to control on entering the United Kingdom

[9] Counsel for the petitioner also drew my attention to a print out from the website of the Irish Naturalisation and Immigration Service which purported to provide information by way of response to frequently asked questions. He pointed out that in that document it was asserted that the Zambrano judgement would not permit the parent of an Irish born child a right of residence if that child had not been ordinarily resident in Ireland.

[10] Taking account of these arrangements counsel for the petitioner made two submissions:

1. Citizens of the Irish Republic have a de facto right to reside in the United Kingdom, and

2. The protection of European Citizenship rights of persons who are not qualified persons may be advanced not only in the Member State of which they are a national but also in any Member State where they have a de facto right to reside.

[11] On behalf of the respondent it was first explained that the Secretary of State's decision was made on the understanding that the petitioner's circumstances did not fall within the scope of the decision in the case of Zambrano, since no evidence had been supplied to establish that the dependant national was a British citizen, all as set out in the letter of refusal dated 27 September 2011. Counsel submitted that this was a correct interpretation of that case since it dealt exclusively with the obligations of the Member State of which the European Citizen concerned was a national and resided within. Relying on what was said in paragraph 63 of the decision of the European Court of Justice in case C- 256/11, Dereci and Others v Bundesministerium fur Inneres counsel submitted that it would be open to the petitioner to seek to claim the present rights sought in the Republic of Ireland, that being her son's chosen state of origin.

[12] In relation to the arrangements for travel between the Republic of Ireland and the United Kingdom counsel for the respondent made two submissions:

1. The terms of section 1(3) of the Immigration Act 1971 had no application to the petitioner's son since he had not arrived in the United Kingdom from the Republic of Ireland. As a consequence the petitioner's son was in no different position from any other citizen of another Member State.

2. Even if the common travel scheme rights did apply to the petitioner's son these rights arose from domestic legislation, whereas any rights which flowed from European Citizenship arose out of the terms of the Treaty.

Discussion

[13] It was accepted that but for the decision in Zambrano it could not have been contended that the petitioner or her son had any right of residence in the United Kingdom which flowed from European Union citizenship.

[14] The circumstances of the present case are in my view quite different from those in the case of Zambrano. The petitioner's son is not a national of the United Kingdom. As noted at paragraph 40 of Zambrano the conditions for the acquisition of nationality are for the Member State in question to lay down. If the Republic of Ireland grants him citizenship, despite the fact that neither he nor his family have ever visited that country, that is a matter entirely for them. However even if the petitioner's son is also entitled to citizenship of the European Union by virtue of that same decision he has not acquired a right of residence in the United Kingdom which flows from European Union citizenship. That is clear from the terms of the Directive and the 2006 Immigration Regulations.

[15] The common travel scheme arrangements have no application to the petitioner's son. Accordingly he is neither a national of the United Kingdom nor someone with any identifiable right of residence in this country.

[16] The document obtained from the Irish Naturalisation and Immigration Service website is of no real value and in any event did not seem to me to be referring to circumstances such as were comparable to those of the petitioner. The point referred to does not raise the question of whether the child would be entitled to reside in the Irish Republic, whether in such circumstances the child's parents and siblings would be entitled to join him and what rights would be available thereafter.

[17] The case of Zambrano is expressly stated to apply to the rights of residence and work which are available to third country nationals, upon whom minor children with European Union citizenship are dependant, in the Member States of which those children are nationals and in which they reside - paragraphs 36, 43, 45 and 46. In my view the case has no application to the petitioner's circumstances.

[18] For these reasons I am satisfied that the decision arrived at by the Secretary of State in her decision letter of 27 September was correct. I will therefore uphold the respondent's first plea in law as amended and refuse the prayer of the petition.