Upper Tribunal Clarifies EEA Zambrano Principle

The Upper Tribunal recently revisited the EEA (European Economic Area) Zambrano principle in the case of Ayinde and Thinjom (Carers – Reg.15A – Zambrano) [2015] UKUT 560 (IAC). The Appellants in this case claimed they were carers for British citizens and should benefit from the principle in ‘Zambrano’ which enables non-EEA nationals who are the carers of ‘British citizens the right to reside and work in the UK, as without their support and earnings it must be assumed that the British citizen would have to leave’ the EEA with their carers’ .

Facts of Case

The case involved two appellants, a Nigerian national who made two applications for leave to remain as the carer of his British national mother and the second appellant; a Thai national who applied for a derivative residence card as the primary carer of her husband.

It was submitted on behalf of the appellants that EEA Citizenship is more than ‘right of residence’ and where a ‘ serious impairment’ of an EEA citizen’s quality of life, results from a non-EEA national carer having to leave the EEA, this could the compel an EEA citizen to follow. Further that the Zambrano threshold is not whether it would be impossible for an EEA citizen to remain in the United Kingdom (because the EEA citizen enjoys a right of residence) but rather that without the assistance of their primary carer on whom they are dependent, the EEA citizen’s right of residence would be seriously impaired due to their dependence on their non-EEA national carer. It was also submitted that the ‘genuine‘ enjoyment of the right of residence must be a practical right of enjoyment and not a theoretical one. If the genuine enjoyment of the right of residence means the carer has to remain, then in light of Zambrano, the carer is entitled to a derivative residence card.

The Home Office disputed this and argued that there was a ‘fundamental flaw in the appellants’ case. Further that this was ‘obvious from the case-law of the Court of Justice and domestic courts which make it clear beyond doubt that the Zambrano principle only applies when an EEA citizen will…be forced to leave the Union’. It was argued that the EEA Zambrano principle should not  apply unless an EEA citizen is forced to leave the UK even if the quality of life of the EEA citizen would be impaired as a result of the non-EEA national carer’s departure. The Home Office argued that this was not the case and that there was no evidence before the First-tier Immigration Tribunal to ‘justify a finding that a British citizen would be forced to leave the EEA as the result of the refusal to grant a residence card’. The Home Office referred the Court to the expression used in reg. 15A (4A) which reads that a person must be ‘ unable ‘ to reside in the United Kingdom and thus can only apply where an EEA citizen would be ‘forced’ to leave Union.


The Immigration Tribunal considered the EEA Zambrano principle and made the following important conclusions:

(i) The deprivation of the enjoyment of the rights attached to an EEA citizen’s residence as in Zambrano [2011] EUECJ C-34/09 is limited to safeguarding a British citizen’s EEA rights as in Article 20.

(ii) The provisions of reg. 15A of the Immigration EEA Regulations 2006 as amended apply when the of removal of the carer of a British citizen renders the British citizen unable to reside in the United Kingdom or in the EEA. This requires the carer to establish that the British citizen will be forced to leave the EEA.

(iii) The requirement is not met by an assumption that the citizen will leave and is not a consideration of whether it would be reasonable for the carer to leave the UK. A comparison of the British citizen’s standard of living or care if the appellant remains or departs is material only in the context of whether the British citizen will leave the UK.

(iv) The Immigration Tribunal is required to examine whether a British citizen will leave the Union if the benefits he receives in the UK are unlikely to be matched in the country he will be forced to settle.

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