The decision of the Court of Appeal of England & Wales in the joined cases Damion Harrison & AB v Secretary of State for the Home Dept [2012] EWCA Civ 1736, 21 December 2012, provides guidance on the application of the principle established by the EU Court of Justice in Case C-34/09 Ruiz Zambrano.

The facts of the case before the Court of Appeal differed from those in Ruiz Zambrano. In the Ruiz Zambrano case, the two Colombian national parents of Belgian children challenged the administrative decision to reject their continued right of residence in Belgium. Their departure from Belgium would have meant that, in practice, their Belgian children would also have been obliged to leave the EU.

In the two joined cases before the Court of Appeal, the Secretary of State for the Home Department ordered the deportation of a non-EU national family member of an EU national, after having committed a serious criminal offence and being unlawfully resident in the UK. The appellant in each case was the non-EU father of a UK national child. The child had a mother who was a UK national (or a UK dual national). The father’s deportation was challenged on the grounds that it would interfere with the family life of the child and that it would, in the words of the CJEU, “have the effect of depriving [the citizen] of the genuine enjoyment of the substance of the rights associated with her status as a Union citizen…” It was argued that, if the appellant were to be deported, the EU citizen (child)’s continued residence would be adversely affected by the non-EU national’s deportation or their quality of life diminished, but in each case it was accepted that the child and partner could remain in the UK. The primary carer, the child’s mother, had a continued right of residence, notwithstanding that it could be financially very difficult for the primary carer to continue to provide for the EU citizen child.

The Court of Appeal takes the view that the Ruiz Zambrano principle only applies where the EU citizen would, in practice, be forced to leave the EU, and not merely where the EU citizen’s quality of life would be diminished. In this respect, Lord Justice Elias observes at [67]-[68]:

“The right of residence is a right to reside in the territory of the EU. It is not a right to any particular quality or life or to any particular standard of living. Accordingly, there is no impediment to exercising the right to reside if residence remains possible as a matter of substance, albeit that the quality of life is diminished. … [T]he CJEU has confirmed in [Case C-256/11] Dereci (paras 67-68) that the fact that the right to family life is adversely affected, or that the presence of the non-EU national is desirable for economic reasons, will not of themselves constitute factors capable of triggering the Zambrano principle.”

The Court of Appeal therefore considered that the principle enunciated in Ruiz Zambrano  was acte claire and would not refer the question for a preliminary ruling by the CJEU.

Reported by Uddalak Datta, Your Europe Advice