By No5 Chambers Immigration Team
Zambrano and Dereci – what does the enjoyment of rights under Article 20 of the Treaty on the Functioning of the European Union really mean?
The Court of Justice of the European Union’s judgment in Ruiz Zambrano v Office national de l’emploi (ONEm) [2011] 2 C.M.L.R. 46 in March of 2011 led to considerable interest regarding how far the principle which provided the basis for the Court’s judgment could be taken. 
The case concerned the applications for regularisation of their stay made by the Colombian parents of two children who had been born in Belgium. Central to the facts was the parents’ immigration status in Belgium. Although they had failed in their asylum applications it had not been possible for the Belgian authorities to remove them to Colombia due to the general tumultuous situation prevailing in that country. 
Because they were born outside Colombia the children did not acquire their parents’ nationality automatically, and under Belgian nationality law children born in that Belgium who would otherwise be stateless are Belgian nationals. This meant that the children were therefore Belgian. There were also – crucially- “citizens” of the European Union.
As citizens of the Union the children were entitled to the benefits that go with that citizenship in accordance with Article 20 of the Treaty on the Functioning of the European Union. Since they were dependent upon their parents it followed in the Court’s view that unless the parents were granted permission to reside and to work in Belgium the children’s enjoyment of their rights under Article 20 would be frustrated. The Court remarked:
“It must be assumed that such a refusal [of residence permits and work permits] would lead to a situation where those children, citizens of the Union, would have to leave the territory of the Union in order to accompany their parents. Similarly, if a work permit were not granted to such a person, he would risk not having sufficient resources to provide for himself and his family, which would also result in the children, citizens of the Union, having to leave the territory of the Union. In those circumstances, those citizens of the Union would, as a result, be unable to exercise the substance of the rights conferred on them by virtue of their status as citizens of the Union.” 
What was particularly striking about the Court’s decision was that its conclusion as to the parents’ entitlement to residence permits in Belgium was not based on the “free movement” rights of European Citizens and their family members set out in the Citizens’ Directive (“Directive 2004/38/EC of the European Parliament and of the Council on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States”).
The rights of residence in the European Union enjoyed by the family members of Union citizens which were conferred by the Citizens’ Directive were dependant upon the Union citizen’s having moved from one Member State to another, as the Court emphasised in its judgment in May of 2011 in McCarthy v Secretary of State for the Home Department [2011] 3 C.M.L.R. 10. The Zambrano children had never left Belgium.
The Zambrano judgment – and its apparent implications for Member States of the European Union – were widely reported and attracted much comment. Speculation following the judgment included the question of whether by this rationale it could be said that the spouse, partner or other relative of a “citizen of the Union” who was not a citizen must also be given residence rights so as to prevent the frustration of the citizen’s Article 20 rights. 
Unsurprisingly therefore, when the Dereci case came before the Court of Justice the Court considered submissions not just from the Austrian government but from seven other Member States, including the United Kingdom. 
Dereci and others (CJEU C-256/11, 15 Nov 2011) concerns applications made by Mr Dereci and four other non-European Union nationals for residence permits to entitle them to live and work in Austria. Each applicant had family members living in Austria.
The Court noted that the substance of the submissions made by the governments of the seven member states was that:
“the principles laid down in Ruiz Zambrano apply to very exceptional situations in which the application of a national measure would lead to the denial of the genuine enjoyment of the substance of the rights conferred by virtue of the status of citizen of the Union.” 
The facts in the main applicant’s case were as follows: Mr Dereci entered Austria illegally and married an Austrian national. The couple had three children, all of whom were also Austrian nationals. Mr Dereci submitted that if he were not allowed to live in Austria the unity of his family would be jeopardised. He would not be able to maintain his family if he had to leave Austria.
Comparing Mr Dereci’s circumstances and those of the other applicants to those of the children in the Zambrano case the Court said:
“It follows that the criterion relating to the denial of the genuine enjoyment of the substance of the rights conferred by virtue of European Union citizen status refers to situations in which the Union citizen has, in fact, to leave not only the territory of the Member State of which he is a national but also the territory of the Union as a whole.” 
No such prospect faced any of the applicants in the Dereci case. The fact that it might appear to be desirable to a national of a Member State for economic reasons to have his or her family living with him in that Member State:
“is not sufficient in itself to support the view that the Union citizen will be forced to leave Union territory if such a right is not granted.” 
For that reason the applications all failed. The Court was however careful to point out that it was not making any ruling as to the applicability either of Article 8 of the European Convention on Human Rights (“ECHR”) or of Article 7 of the Charter of Fundamental Rights of the European Union.
The Court noted that it was possible that the applications for residency must succeed if considered under either of these Articles, which protect family life. The Court however says that that question is not for itself but for the Austrian authorities because Article 7 of the Charter will only be engaged if the applications are covered by European Union law, as is made clear in the Charter’s Article 51 (2). If the Austrian authorities decide that the issue is not one which engages European Union law then it can consider the applicants’ positions under Article 8 of the ECHR.
All of which is puzzling to say the least since the consolidated version of the Treaty on the European Union says (at Article 6.3) that:
“Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law.” 
In other words: human rights law and European Union law are inseparable. 
No5 Chambers Immigration Team