Six months after the ECJ ruled in the groundbreaking case of Ruiz Zambrano (C-34/09), the UK Border Agency has finally clarified its policy as regards the sole carers of dependent British citizens.
The case concerned the rights of UK or EU children in relation to their parents who are foreign nationals. It was ruled that, where a British or EU child is living in the UK and needs a foreign national parent to live with them so they can stay in the country, the parent or parents have the right under EU law to reside in the UK.
The parent(s) of the concerned child will also have the right to work so that they can support their child or children.
Furthermore, the ruling does not apply solely to children, but to dependent British citizens, which could include a British citizen adult who is dependent upon a foreign national adult.
Until now, the UKBA has not been accepting applications made on the basis of this judgment, apparently because they have been “considering” the judgment and how to make provision for it within the Immigration (European Economic Area) Regulations 2006. Clearly, this will have caused frustration and distress to those foreign nationals who are sole carers of British citizens and have sought to have their residency approved in the light of this ruling.
UKBA states that they will amend the Regulations to reflect the ruling “in due course”, which again is rather too vague for those seeking immediate change. However, they have provided that in the meantime, certificates of application will be awarded to those who are able to show:
• evidence that the dependent national is a British citizen;
• evidence of the relationship between the applicant and the British citizen; and
• adequate evidence of dependency between the applicant and the British citizen.
This certificate will enable a person to work in the UK while their application is outstanding.
Once the UKBA has altered the Regulations, applications “will be given full consideration and documentation will be issued under the regulations to those who meet the final agreed policy.”
As yet, the UKBA has not issued any guidance as to what kind of evidence the UKBA will treat as establishing a strong application and whether further and more detailed evidence will be requested from an applicant to prove they meet the substantive test. It appears, however, that given the nature of the ruling the cases of dependent children are likely to face less difficulty than dependent adults.
Newland Chase hopes that the publication of the UKBA”s guidance on this point will help make things clearer, especially for those who already have other kinds of applications pending with other departments of UKBA. If you wish further information regarding this area of immigration law, or assistance with your application, please contact us.