MA v The Entry Clearance Officer, Istanbul

A primary carer of a minor EU citizen may in principle rely on the Zambrano principle even where the child has never entered the European Union, provided that the carer intends to accompany the child to the child’s Member State of nationality. The decisive question remains whether refusal would deprive the child of the genuine enjoyment of the substance of EU citizenship rights.

That threshold requires practical compulsion to leave, or inability to reside, in the EU. It is not met merely because refusal reduces a child’s quality of life or a British parent’s economic activity. In an Article 8 assessment, however, a British citizen child cannot logically be treated as able to relocate permanently outside the EU. The child’s best interests are a primary consideration and may outweigh economic immigration-control considerations on compelling facts.

These conjoined entry-clearance appeals concerned non-EEA national mothers seeking to join British citizen husbands and children in the United Kingdom. Both First-tier Tribunal decisions had dismissed the appeals under the Immigration Rules and Article 8 of the European Convention on Human Rights.

In the first appeal, the Iranian appellant lived in Turkey with her British citizen son. The Upper Tribunal had set aside the First-tier Tribunal’s Article 8 decision. The father’s serious mental-health condition meant that he could not safely care for the child alone.

In the second appeal, the Thai appellant’s two British citizen children were living separately, one with their father in the United Kingdom and one with her in Thailand. The First-tier Tribunal’s Article 8 decision had been set aside for failure properly to assess the children’s best interests.

The common issues were whether Zambrano rights extended to EU citizen children who had never lived in the EU, and the correct Article 8 approach where British citizen children were affected.

1. Both appeals were allowed. The first appeal was allowed because refusal of entry clearance breached the appellant’s derived EU-law right of entry and residence. The second was allowed on Article 8 grounds.

2. The Tribunal held that the Zambrano principle may, in principle, be invoked by a parent or other primary carer of a minor EU citizen who lives outside the EU and has never entered it, where the carer intends to accompany that child to the child’s country of nationality. A contrary conclusion would unjustifiably deny a class of EU citizens the rights arising from their citizenship. This conclusion was reinforced by the amendments made by the Immigration (European Economic Area) (Amendment) (No.2) Regulations 2012.

3. The applicable Article 20 inquiry was practical and fact-sensitive. EU law is engaged only where refusal would compel the dependent EU citizen to leave the EU, or prevent genuine residence there. A reduced quality of life, or a parent’s reduced ability to work, is insufficient.

4. In the first appeal, the British citizen child’s father could not care for him without more than an insignificant risk to his essential well-being. There was no available alternative carer. Refusal would therefore deprive the child of the genuine enjoyment of the substance of his EU citizenship rights and breach Article 20 of the Treaty on the Functioning of the European Union.

5. In the second appeal, the British citizen father could care for both children. Refusal would not therefore breach Article 20, even if it made family life and economic activity more difficult. For Article 8 purposes, however, the Secretary of State’s concession meant that the claim could not be rejected on the basis that the British citizen children could relocate, or remain, outside the EU.

6. The children’s best interests lay in a united family and carried particular weight because of the elder child’s emotional and developmental difficulties. Although economic well-being and immigration control were legitimate considerations, the continuing separation of a mother from both children, on the particular facts and absent misconduct, was disproportionate. The Tribunal remade the second decision accordingly.

• Upper Tribunal (Immigration and Asylum Chamber): The First-tier Tribunal decisions were set aside insofar as they contained errors in their Article 8 assessments. The Upper Tribunal remade both appeals, allowing the first under EU law and the second under Article 8.
• First-tier Tribunal: In the first appeal, the determination promulgated on 15 November 2012 dismissed the appeal under the Immigration Rules and Article 8. In the second, the determination promulgated on 7 March 2013 dismissed the appeal under the Immigration Rules and Article 8.