Spouses of British Nationals and British Children Excluded From the UK

As a mother or father, husband or wife, without British or European Nationality, making an application to the Home Office/UK Border Agency from outside the UK, to join British family, it can be difficult to obtain that all important settlement visa.  Quite often applications are met with stiff refusal letters from the UKBA, and more often than not it will be argued that your British relative could quite easily leave the UK and set up home in your country of origin.

 

In recent times a number of European cases have surfaced, including the case of Zambrano, which suggest that any person “a third country national” i.e. those who are not British or European Nationals may have a right of residence under European Union Law, which would exist over and above any right conferred by the UK Immigration Rules by virtue of their relationship with their British spouse or child.  This would apply where a the relative is unable to remain in the UK, whether because they are a minor and cannot stay without their third country parent, or because their British spouse is unable to leave the UK and is detained for example. 

 

This quasi right of residence arises from Article 20 of the Treaty on the Functioning of the European Union which confers the status of Citizen of the Union on every person holding nationality of a Member State.  In the UK it is up to the Home Office/UK Border Agency to lay down the requirements for acquisition of nationality, up to the point where this does not conflict with any EEA law. 

 

Citizenship of the Union is intended to be the fundamental status of nationals of the Member States. Article 20 TFEU precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union. 

 

A refusal to grant a right of residence to a third country national with dependent minor children in the Member State where those children are nationals and reside, and also a refusal to grant such a person a work permit, has such an effect.

 

It must be assumed that such a refusal would lead to a situation where those children, citizens of the Union, would have to leave the territory of the Union in order to accompany their parents. Similarly, if a work permit were not granted to such a person, he would risk not having sufficient resources to provide for himself and his family, which would also result in the children, citizens of the Union, having to leave the territory of the Union. In those circumstances, those citizens of the Union would, in fact, be unable to exercise the substance of the rights conferred on them by virtue of their status as citizens of the Union.

 

It means that in the UK, any refusal to allow entry to a third country national upon whom his minor children, who are UK citizens, are dependent, or to allow a right of residence in the UK and nationality of those children, or a refusal to grant a work permit to that third country national will deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen.