2011 06 International Law

Friday 1 July 2011

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R (HH) v City of Westminster Magistrates’ Court [2011] EWHC 1145 Admin (Laws LJ): whilst the best interests of children were a primary consideration in extradition cases, they could not generally override the public interest in effective extradition procedures. There had to be an “exceptionally compelling feature” giving rise to “the gravest effects of interference with family life”. The decision in ZH (Tanzani) v SSHD [2011] UKSC 4, [2011] 2 WLR 148 did not require any modification to the approach laid down in Norris v USA [2010] UKSC 9, [2010] 2 WLR 572. Click here for the transcript.

Shirley McCarthy v Secretary of State for the Home Department Case C-434/09. In a judgment given on 5 May 2011, the Court of Justice of the European Union considered the position of an EU citizen who was a dual national (British citizen/Irish citizen) who had never moved from the UK and had not been economically active or self-sufficient. She has sought to rely on Directive 2004/38/EC and to assert that she had been resided legally in the UK for the purpose of the acquisition of the right of permanent residence. It mattered to her because she wanted to rely on EU free movement rights in order that her Jamaican husband who lacked leave to remain in the UK could derive a lawful right of residence in the UK. In its judgment the Court held that article 3(1) of Directive 2004/38/EC must be interpreted as meaning that that Directive is not applicable to a Union citizen who has never exercised his right of free movement, who has always resided in a Member State of which he is a national and who is also a national of another Member State. It further held that article 21 of the Treaty of the Functioning of the European Union (TFEU) conferring the right of free movement on EU citizens is not applicable to a Union citizen who has never exercised his right of free movement, who has always resided in a Member State of which he is a national and who is also a national of another Member State, provided that the situation of that citizen does not include the application of measures by a Member State that would have the effect of depriving him of the genuine enjoyment of the substance of the rights conferred by virtue of his status as a Union citizen or of impeding the exercise of his right of free movement and residence within the territory of the Member States. Click here for transcript.

In Omotunde (best interests - Zambrano applied - Razgar) Nigeria [2011] UKUT 247 (IAC), the Upper Tribunal said that in cases where a child has British nationality, this may afford him a right to reside in his own country, both as a British citizen and a citizen of the European Union but it doubted whether there was a substantial difference between the human rights based assessment of proportionality considered by Lady Hale in ZH (Tanzania) and the approach required by Community law in Zambrando. click here for transcript

In Zambrano v Office national de l’emploi (Case C-34/09), Z and his wife were both Colombian nationals who applied for asylum in Belgium. In September 2000, the Belgian authorities refused their applications but decided that they should not be sent back to Colombia in view of the civil war in that country. Although Z did not hold a work permit he started full-time work. In April 2004, Z and his wife applied to have their situation regularised, referring to the birth of their second child who had acquired Belgian nationality under Belgian law, since Colombian law does not recognise Colombian nationality for children born outside the territory of Colombia where the parents do not take specific steps to have them so recognised. This was refused. Following the birth of their third child, Z and his wife lodged an application to take up residence in Belgium. This was rejected on the basis that Z, by not registering his child with the Colombian authorities, was trying “to legalise his own residence.” When Z brought an action to review that decision he was issued with a ‘special residence permit’ for the duration of that action.

In the meantime, Z’s employment contract was temporarily suspended on economic grounds, which led him to lodge an application for unemployment benefit, which was rejected by the National Employment Office. When Z brought an action against that decision the Aliens’ Office confirmed that Z and his wife could not pursue any employment and when Z was found to be at work during an inspection he had to stop working immediately and the next day Z’s employer terminated his contract of employment with immediate effect and without compensation. Z then lodged an application for full-time unemployment benefit. This was also rejected and Z brought an action against that decision. Both of the decisions refusing unemployment benefit were based on a finding that the relevant qualifying periods were not completed by Z because of his residence status as a foreign worker. Before the Employment Tribunal Z submitted that he enjoyed a right of residence directly by virtue of the EC Treaty or, at the very least, that he enjoyed the derived right of residence, recognised in Case C-200/02 Zhu and Chen [2004] ECR I-9925 for the ascendants of a minor child who was a national of a Member State and therefore was exempt from the obligation to hold a work permit. The Tribunal decided to stay the proceedings and make a reference to the ECJ for a preliminary rulingon the question of whether the provisions of the TFEU on European Union citizenship were to be interpreted as meaning that they confer on a relative in the ascending line, who is a third country national upon whom his minor children, who are European Union citizens, are dependent, a right of residence in the Member State of which they are nationals and in which they reside, and also exempt him from having to obtain a work permit in that Member State.

The ECJ said that Directive 2004/38 did not apply to Z’s situation as the directive applies to Union citizens who move to or reside in a Member State other than that of which they are a national (art.3(1)). Z’s second and third children possessed the status of Belgian nationality because the conditions for the acquisition of nationality was a matter for the Member State in question to lay down. Citizenship of the Union was a fundamental status of nationals of the Member State. The ECJ held that in those circumstances Article 20 of the TFEU precluded national measures which had the effect of depriving citizens of the Union of the genuine enjoyment of those rights. A refusal to grant a right of residence to Z, a third country national with dependent minor children in a Member State where those children were nationals and resided, and also a refusal to grant Z a work permit, would have that effect. The Court held that “it must be assumed” that such a refusal would lead to a situation where those children would have to leave the territory of the Union in order to accompany their parents. Similarly, if a work permit were not granted to Z, he would risk not having sufficient resources to provide for himself and his family, which would also result in his children having to leave the territory of the Union. Accordingly, the ECJ’s answer to the question referred was:

“Article 20 TFEU is to be interpreted as meaning that it precludes a Member State from refusing a third country national upon whom his minor children, who are European Union citizens, are dependent, 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, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen.” click here for transcript

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