Secretary of State for the Home Department v NA (Pakistan)

The Zambrano right of residence is engaged only where refusal of residence would in practice compel a Union citizen to leave the territory of the European Union altogether. A breach, or serious interference with, family-life rights does not by itself establish that consequence. The assessment focuses on practical compulsion and the substance of the right to reside, rather than on a right to reside in a particular Member State or on the desirability of preserving family life in the Union.

Where the relevant Union citizen can reside in the Member State of nationality, a finding that removal there would breach Article 8 of the ECHR or Article 7 of the Charter does not automatically establish a Zambrano right. The question may nevertheless require a reference where the interaction between practical compulsion and fundamental rights is not acte clair.

NA, a Pakistani national, was the sole carer of two German-national children born in the United Kingdom. Her former husband, a German national, had left the United Kingdom before the children entered education. The Upper Tribunal held that she had rights of residence under Article 20 TFEU applying Zambrano principles and under Article 12 of Regulation 1612/68, and allowed her appeal on Article 8 grounds.

On the Secretary of State’s appeal, the Court of Appeal had already referred a question concerning Article 13(2) of Directive 2004/38/EC. It considered whether the children’s possible removal to Germany, their state of nationality, would engage Article 20 and whether Article 12 contained an implied requirement that the Union-national parent still be resident when the child entered education. The court referred both issues, together with a question concerning the parent’s derived residence.

1. Article 20 and Zambrano. The Upper Tribunal’s conclusion that NA had a Zambrano right because she could not rely on an EU right of residence in Germany was wrong. The children were German nationals and entitled to live in Germany. If they moved there, NA, as their parent with sole care, would have a derived right of residence in Germany.
2. The parties’ dispute raised a question not previously decided by the CJEU or domestic courts. The relevant issue was whether Articles 20 and 21 TFEU were engaged where the Union citizen could reside only in the state of nationality, but a competent tribunal had found that removal there would breach Article 8 ECHR or Article 7 of the Charter. The court treated the question as not acte clair and referred it to the CJEU.
3. The court considered the distinction drawn in Dereci between the exceptional Zambrano criterion and the separate protection of family life. The mere desirability of keeping a family together in the Union, including for economic reasons, is insufficient. The relevant criterion concerns practical compulsion to leave the territory of the Union as a whole. Harrison was treated as confirming that a right to reside in EU territory is not a right to a particular quality of life or standard of living, although serious impairment may in practice compel departure.
4. NA’s separate Article 20 submission. NA’s argument that her own prior lawful residence and the curtailment of residence under the Directive engaged Articles 20 and 21 added nothing. The procedural safeguards under Article 15 of the Directive had been provided, and a non-Union citizen could not be in a better position than her Union-national children on the facts. If the children had a Zambrano right, NA would have a derived right to reside with them.
5. Article 12 of Regulation 1612/68. The authorities established four relevant conditions but did not resolve whether Article 12 was subject to an additional implied temporal-overlap condition requiring the Union-national parent to be in the host Member State when the child entered education. The issue was one of principle, was not acte clair, and was referred to the CJEU. The questions were formally posed at paragraph 30, including the child’s derived residence question.

• Court of Appeal (Civil Division): at an earlier stage of the same appeal, referred a question concerning Article 13(2) of Directive 2004/38/EC: [2014] EWCA Civ 995. In the present judgment, the court considered the Secretary of State’s further challenges, held that the Upper Tribunal’s Article 20 reasoning was wrong in the manner described, and referred three questions to the CJEU.
• Upper Tribunal (Immigration and Asylum Chamber): held that NA had rights of residence under Article 20 TFEU applying Zambrano principles and under Article 12 of Regulation 1612/68, and allowed her appeal on Article 8 grounds.