Zambrano: The Home Office shows its hand?

Regular subscribers to this blog may be familiar with developments around the Zambrano case, a European Court of Justice ruling which determined that the primary carers of European Union – i.e. British- citizens born outside the European Union and subject to immigration control, should be granted a right of residence, including the right to work, in order to give meaningful effect to their dependent EU citizens’ European citizenship rights.

Much of the discussion around this, to date, has been on the vexed subject of Zambrano carers’ entitlements to welfare benefits and social housing, with the Department for Work and Pensions rewriting the benefit rules in November 2012 specifically to exclude Zambrano families from the scope of public funds. The concerns put forward by agencies such as our own and Birmingham Law Centre have focused primarily on the implications of these restrictions, and the third class childhood on section 17 Children Act support to which many British citizen children are consigned as a consequence. [ ]

Yet there has been little attention on the intentions of the Home Office, as the agency responsible for assessing Zambrano carers’ applications for the right to reside, towards the matter. Effectively, the Home office has, in our experience, adopted a “holding” tactic, issuing applicants wit a Certificate of Application and advising that a decision should be made within 6 months. What the Home Office proposed to do once these six months (or, invariably, longer) had elapsed remained something of a mystery. Now, it seems, we know.

‘Eloise’ is a Jamaican woman who has been resident in the UK for the best part of 12 years, having overstayed on a visa. She is the single mother of ‘Tanya’, who is 2 years old. Eloise had previously been in a relationship with a British citizen, who is Tanya’s father, and is named as such on her birth certificate. Tanya is therefore a British citizen, and possesses a UK passport.

Tanya has met her father on a total of 3 occasions -one of which being when he accompanied Eloise to the register her birth. Each of these occasions has been at the instigation of Eloise. He demonstrates no significant interest in his daughter, and has played no part in her upbringing to date. Eloise last spoke with him some 12 months ago. She has not changed her telephone number for over 3 years. Tanya’s father has not made contact. Eloise is demonstrably Tanya’s primary- indeed, only- carer, and has been accepted as such by the Local Authority’s Social Service Department, whose section 17 Children Act assessment spoke approvingly of Eloise’s capacity as a loving, capable and committed parent.

In April 2012- some 14 months ago- ASIRT made representations on Eloise’s behalf, submitting all of this information and requesting she be granted the right to reside in the UK as a Zambrano carer. Eloise received a Certificate of Application, informing her that a decision would be made within 6 months.

We have now received the Home Office’s decision on Eloise’s application. They have refused to recognise her as a Zambrano carer. Quite astonishingly, the Home Office is claiming that the evidence submitted on Eloise’s behalf does not demonstrate that Tanya would be unable to remain in the UK if Eloise were forced to believe, since she has failed to provide evidence as to why Tanya’s father is not in a position to care for her. The Home Office’s position essentially pivots on this phrase:

“Any unwillingness to assume care responsibility is not, by itself, sufficient for the claimed primary carer to assert that another direct relative or guardian is unable to care for the British citizen”.

Eloise has been advised to make arrangements to leave the UK, causing her considerable distress and anxiety.

We find this extraordinary. The Home Office, of course, has no power to force Tanya’s “unwilling” father to assume responsibility for her care. Yet even if it had such power, we are at a loss to understand how the statutory duty to safeguard and promote the welfare of children could possibly be upheld by removing a British citizen child from the care of a loving and committed parent into the care of a relative stranger, who demonstrates no interest in her wellbeing and by the Home Office’s own account, is “unwilling” to look after her.

It is impossible to conclude that this decision has been informed by anything other than the Home Office’s administrative convenience and the desire to reduce net migration, rather than by any concern for Tanya’s best interests.

We have, of course, assisted Eloise with the submission of an appeal against the Home Office’s decision, which appears manifestly unlawful. Yet we are conscious that not everyone in Eloise’s position will have access to the OISC regulated, competent and free immigration advice and representation we are able to offer. Even before the proposed introduction of the “residence test” for Legal Aid, the Legal Aid, Sentencing and Punishment of Offenders Act, introduced on April 1st, took 96% of all immigration matters out of the scope of legal aid. People in Eloise’s position can not, therefore, access publicly funded representation to challenge such unlawful and unjust decisions, leaving them with the option either of paying privately for such help or, in the event of an inability to find the fees to fund such work, simply accepting the Home Office’s decision, possibly being forced into the illegal economy to support their children.

Again, the difficulties people like Eloise face in accessing justice in the present climate are immense. ASIRT needs money to be able to continue supporting them, and in holding powerful state agencies like the Home Office to account for their actions. Please make a donation, no matter how small, if you are in any way able.

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