Introduction

The case of Ayinde and Thinjom (Carers - Reg.15A - Zambrano) ([2015] UKUT 560 (IAC)) addresses the application and limitations of the Zambrano principle within the context of derivative residence rights under the EEA Regulations. The appellants, Mr. Ayinde and Ms. Thinjom, sought to remain in the United Kingdom as primary carers of British citizens, relying on the Zambrano principle to assert that their departure would effectively force their British relatives to leave the EU.

This commentary explores the judgment delivered by Andrew Jordan J. of the Upper Tribunal, examining the intricacies of the Zambrano principle, its application in this case, and the broader implications for immigration and EU citizenship law.

Summary of the Judgment

The Upper Tribunal dismissed the appeals of Mr. Ayinde and Ms. Thinjom, holding that they failed to meet the stringent requirements of Regulation 15A of the EEA Regulations and the Zambrano principle. Specifically, the tribunal found that the appellants did not establish that the British citizens they cared for would be compelled to leave the UK or the EU should they themselves be required to depart.

Key findings include:

• The Zambrano principle necessitates a factual demonstration that the EU citizen would be forced to leave the Union if their carer departs.
• The Tribunal Judges erred by applying a reasonableness test instead of strictly evaluating the factual basis of forced departure.
• The appeal highlighted an inappropriate extension of the Zambrano principle from its original application concerning minor children to cases involving elderly care.

Analysis

Precedents Cited

The judgment extensively references the landmark case of Ruiz Zambrano (C-34/09), wherein the Court of Justice of the European Union (CJEU) established that non-EU parents of EU citizen children could gain derivative rights to reside in the EU to prevent the children from effectively being forced to leave the Union. Subsequent cases such as Dereci & Ors and Yoshikazu Iida v Stadt Ulm further delineated the boundaries of the Zambrano principle, emphasizing the necessity of a real and impending forced departure for its applicability.

Legal Reasoning

The tribunal emphasized a strict interpretation of the Zambrano principle, reiterating that its application is confined to scenarios where the EU citizen would demonstrably be forced to leave the Union. The appellants' reliance on a broader interpretation, suggesting that any significant diminution in the quality of life of the EU citizen warrants derivative rights, was systematically rejected.

Key legal points include:

• Factual Threshold: The principle requires clear evidence that the EU citizen cannot reside independently of the carer.
• Scope of Application: Zambrano is limited to cases involving minor children and does not extend to elderly or infirm individuals unless specific conditions are met.
• Reasonableness Test: The tribunal found the use of a reasonableness test inappropriate, arguing it diluted the strict criteria necessary for Zambrano's application.

Impact

This judgment underscores the restrictive application of the Zambrano principle, limiting its use to specific circumstances where the departure of the carer unequivocally forces the EU citizen to leave the Union. It serves as a precedent that broadening the principle to include cases like elder care without incontrovertible evidence of forced departure is impermissible. Future cases will likely follow this stringent interpretation, emphasizing the necessity for clear and factual evidence of forced relocation of the EU citizen.

Complex Concepts Simplified

Zambrano Principle

The Zambrano principle allows non-EU parents of EU citizen children to obtain residence rights in the EU to prevent the children from losing their EU citizenship rights due to their parents' inability to stay.

Derivative Residence

Derivative residence refers to the right of a non-EU family member to reside in the EU based on their relationship with an EU citizen.

Regulation 15A of the EEA Regulations

Regulation 15A provides non-exempt EEA nationals the right to reside in the UK as long as certain criteria are met, including being the primary carer of a British citizen who cannot reside without them.

Conclusion

The Upper Tribunal's judgment in Ayinde and Thinjom v. Upper Tribunal reinforces the limited scope of the Zambrano principle, insisting on concrete evidence of forced departure of the EU citizen to grant derivative residence rights. By dismissing the appeals of Mr. Ayinde and Ms. Thinjom, the tribunal clarified that broad interpretations of the Zambrano principle, especially those extending to non-child carers, are untenable. This decision serves as a critical reference point for future immigration cases, emphasizing the necessity for strict adherence to established legal thresholds when invoking EU citizenship rights.

The judgment delineates the boundaries of EU citizenship protections, ensuring that derivative rights are not expansively interpreted beyond their intended scope. This maintains the balance between safeguarding EU citizens' rights and upholding the integrity of national immigration controls.