ECJ 1. When applying the judgment of the Court of Justice of the European Union in Ruiz Zambrano (European citizenship) [2011] EUECJ Case C-34/09 OJ 2011 C130/2 and that of the Supreme Court in ZH (Tanzania) [2011] UKSC 4; [2011] 2 WLR 148, in relation to the proposed administrative removal or deportation of one or both of his non-national parents, the welfare of a child, particularly a child who is a British citizen, is a primary consideration.
2. National courts must engage with the question whether removal of a particular parent will ‘deprive [the child] of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen’.
3. Where there are strong public interest reasons to expel a non-national parent, any right of residence for the parent is not an absolute one but is subject to the Community Law principle of proportionality. There is no substantial difference between the human rights based assessment of proportionality of any interference considered by Lady Hale in ZH (Tanzania) and the approach required by Community law.
4. In this particular context, the Article 8 assessment questions set out in Razgar [2004] UKHL 27 should be tailored as follows, placing the assessment of necessity where it most appropriately belongs in the final question dependent on the outcome of proportionality and a fair balance, rather than as part of the identification of the legitimate aim:
1. Is there family life enjoyed between the appellant and a minor child that requires respect in the context of immigration decision making?
2. Would deportation of the parent interfere with the enjoyment of that family life?
3. Is such an interference in accordance with the law?
4. Is such an interference in pursuit of a legitimate aim?
5. Is deportation necessary, proportionate and a fair balance between the rights to respect for the family life of the appellant and the child and the particular public interest in question?
Judges:
Blake J P
Citations:
[2011] UKUT 247 (IAC)
Links:
Jurisdiction:
England and Wales
Immigration, Human Rights
Updated: 15 September 2022; Ref: scu.441705