HC and Sanneh – ‘genuine enjoyment’ does not include social welfare

BlogPhotoDr Iyiola Solanke

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[1] –  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[2], this liberates them from domestic violence.  For others who may be abandoned, like Sanneh[3], it provides a lifeline preventing expulsion to unhappy lives elsewhere. Continue reading

Case Comment: C-86/12 Alopka

Catherine Taroni


The seminal decision in Zambrano relied upon Article 20 TFEU as a source of residence rights independent of secondary legislation.  The CJEU has so far not been willing to extend its application, and Alopka was another failed attempt to rely upon Article 20 TFEU.


Alopka concerned a Togolese national with French children (born in Luxembourg) and a dispute regarding a refusal to grant Ms Alopka a right of residence and an order for her to leave Luxembourg.  Ms Alopka and her children were reliant on the State although she had been offered a job, which her lack of residence and work permits prevented her from commencing.

The Advocate General’s Opinion

Advocate General Mengozzi differentiated the case from Zambrano as the Union citizen children here did not hold the nationality of the Member State of residence, and therefore fell within the scope of Article 3(1) of Directive 2004/38.  Unlike in Chen, Ms Alopka did not possess sufficient resources for herself and her children so as not to rely on Luxembourg’s social security system.  AG Mengozzi considered that ‘sufficient resources’ for the purpose of Article 7(1)(b) of the Directive were capable of being satisfied by the definite prospect of future resources which would stem from the offer of a job of unlimited duration.  He suggested that the referring court should, in principle, examine the job offer with a view to determining whether the Union citizen children would have sufficient resources under the Directive should Ms Alopka commence work.

The Advocate General did not consider that the Charter of Fundamental Rights could result in the conditions of residence under the Directive being relaxed or disregarded either in order to protect a child’s best interests (Article 24) or due to respect for family life (Articles 7 and 33 of the Charter), as this would mean disregarding the limits to Article 21 TFEU.

Following Iida, where the CJEU interpreted the right derived by a national of a non-Member State who is a non-dependent direct relative in the ascending line of a Union citizen child as falling outside the scope of Directive 2004/38 and being based solely on Article 21 TFEU, the Advocate General suggested that if the referring court were to find that Ms Alopka’s children satisfied the conditions laid down in Article 7(1)(b), then their mother could derive a right of residence based on Article 21 TFEU, rather than from the Directive. Continue reading

Case Comment: AG’s Opinion in X, Y and Z v Minister voor Immigratie, Integratie en Asiel (C‑199/12, C‑200/12 and C‑201/12)

Karon Monaghan QC

On 11th July 2013, Advocate General Sharpston delivered her Opinion in X, Y and Z v Minister voor Immigratie, Integratie en Asiel (joined Cases C‑199/12, C‑200/12 and C‑201/12). The case concerned three nationals, X, Y and Z, of respectively Sierra Leone, Uganda and Senegal, all of whom are gay. They sought refugee status in the Netherlands, claiming a well- founded fear of persecution in their home countries based on their sexual orientation, relying, inter alia, on the fact that homosexuality is criminalized in Sierra Leone, Uganda and Senegal.

Their claims to refugee status fell to be considered under the EU Qualifications Directive 2004/83/EU (‘on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted’). Replicating provision made under the Geneva Convention, the Directive defines a ‘refugee’ as a ‘third country national who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside the country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country’. Further, as to persecutory acts, the Directive provides that  ‘9(1) Acts of persecution within the meaning of Article 1 A of the Geneva Convention must: (a) be sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms [including Articles 2 and 3]; or (b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a)’; ‘9(2). Acts of persecution as qualified in paragraph 1, can, inter alia, take the form of: (a) acts of physical or mental violence, including acts of sexual violence; (b) legal, administrative, police, and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner; (c) prosecution or punishment, which is disproportionate or discriminatory; (d) denial of judicial redress resulting in a disproportionate or discriminatory punishment’. Continue reading

The UK Immigration Bill and EU law

immigration bill and EU lawDr Iyiola Solanke

My government will bring forward a bill that further reforms Britain’s immigration system. The bill will ensure that this country attracts people who will contribute and deters those who will not.’

Every government in the post-WWII period has promised to reform the immigration system. Fortunately words have been chosen carefully – none promise to improve it. In times past, governments have tried to gain support for stricter immigration controls with a ‘sweetener’, usually in the form of simultaneous promises to improve integration. This trend is visible in the Queens Speech of May 8th, but the tone is quite different: previously, equality was promoted as a right; for the Coalition ‘fairness’ is a reward for those who ‘work hard’. In short, the Coalition ‘is committed to a fairer society where aspiration and responsibility are rewarded.’

Yet this fair treatment does not extend to immigrants who the Coalition plan to subject to further unfair treatment at the hands of private landlords. The intention is to impose upon landlords a requirement to check the immigration status of tenants or face heavy fines. It is not clear which of the above reform goals this is designed to address: it seems to be a general measure to disseminate throughout society a message of ‘crimmigration’ – the criminalization of immigration whereby those who cross borders are per se regarded as a security threat and subjected to constant policing and monitoring.

Many have already questioned how this duty will work, given that there is no current register of the millions of private landlords in the country. Why should they make the effort to comply, even with the threat of fines? In order to make such sanctions effective they will have to be closely enforced; surely it will undermine the Conservative goal of reducing ‘red tape’ to introduce the necessary enforcement regime? Furthermore, given that discrimination on the grounds of nationality has been prohibited under EU law since 1957, can the government introduce a measure which explicitly targets non-nationals, including those arriving from the European Union?

Continue reading

Matrix seminar – EU law and immigration (part 2)

As promised on Friday, here is the second paper  from the recent Matrix seminar on EU law and immigration law at which Raza Husain QC and Aidan O’Neill QC spoke.  In it, Aidan discusses the current state of EU asylum and refugeee status law.  This is an area of some considerable controversy and litigation, both domestically and in the Luxembourg and Strasbourg courts.  Feel free to join in the debate by commenting below.