What does ‘genuine enjoyment’ of citizenship rights actually mean? This idea was first introduced by the CJEU in Zambrano, where that Court held it would deprive child EU citizens of the ‘genuine enjoyment’ of the rights associated with EU citizenship if their parents or primary carers were compelled to leave the EU. This idea of compulsion has been propelled to the fore in HC and Sanneh, to the extent of perhaps eclipsing the notion of ‘genuine enjoyment.’
Zambrano arose less than 10 years after the case of Chen and has become equally seminal in the development of the substance of EU citizenship. Whereas in Chen, the Chinese (thus non-EU) parents had taken their child born in Ireland to Wales, thus making Baby Catherine a migrant EU citizen, in Zambrano the children born to Columbian (thus non-EU) parents were stationary – they had not moved from their state of birth – but were nonetheless accorded EU citizenship rights. As there was no migration to engage EU law, the new idea of ‘genuine enjoyment’ was introduced to perform this function. The CJEU decided in Zambrano that refusal to provide a residence and work permit would compel parental departure from the EU and thus undermine the ‘genuine enjoyment’ of EU citizenship rights by the child; the refusal was therefore contrary to EU law.
Before anybody could get too excited about the potential of this idea, Dereci and McCarthy clarified that compulsion related solely to practical consequences. The rupture of strong emotional and psychological ties within the family would not demonstrate compulsion to leave – diminution of the enjoyment of family life does not engage Zambrano rights. Nonetheless, Zambrano gave birth to two new important statuses in EU law: the ‘Zambrano carer’ and the ‘Zambrano citizen.’ The latter refers to a non-migrant minor EU citizen; the former to the primary carer of such a citizen. A Zambrano carer – by definition a non-EU citizen, in practice mostly female and predominantly black – derives crucial rights of residence in order to effect the ‘genuine enjoyment’ of the rights of Zambrano citizens. This status of ‘Zambrano carer’ has since its introduction become extremely valuable to mothers, who would otherwise struggle to gain residence rights without relying on their partners. For some, such as HC, this liberates them from domestic violence. For others who may be abandoned, like Sanneh, it provides a lifeline preventing expulsion to unhappy lives elsewhere. Continue reading