HU110002017 & HU110022017 -[2019] UKAITUR HU110002017- (1 May 2019)

Key Facts

Issues

• The judge materially erred in law by not directing himself on the effect of the Ruiz Zambrano (European citizenship) [2011] EUECJ C-34/09 decision when considering the position of OO's son, SB, a British citizen. This error relates to the rights attaching to European Union citizenship under EU law.
• The Tribunal was satisfied that OO maintains a genuine and subsisting parental relationship with SB, a British citizen, which is a critical factor in assessing the impact of her removal on family life under Article 8 ECHR.
• The removal of OO was deemed a disproportionate interference with her Article 8 rights due to its impact on SB's EU citizenship. Similarly, removing AO (a minor) if OO stays was also found to be disproportionate under Article 8 ECHR.
• The removal of OO from the UK would deprive her son SB (a British citizen) of the genuine enjoyment of EU citizenship rights, making her removal unreasonable. Additionally, removing AO (a minor) if OO remains would be a disproportionate interference with both OO and AO's Article 8 rights under the European Convention on Human Rights.
• The Tribunal concluded that the public interest does not require OO's removal from the UK, as her continued presence aligns with the rights of her son SB under EU law and does not conflict with overriding public policy concerns.

Holdings

• The Appellants' human rights appeals were allowed because removing OO from the UK would deprive her son SB (a British citizen) of genuine enjoyment of EU citizenship rights and constitute a disproportionate interference under Article 8 ECHR.
• The judge's decision to dismiss the appeals was set aside due to a material error in law regarding the Ruiz Zambrano case, which affects the rights of a British citizen child, SB, under European Union law.

Remedies

• The Appellants' human rights appeals are allowed.
• The judge's decision is set aside.

Legal Principles

• The application of the Ruiz Zambrano decision [2011] EUECJ C-34/09 regarding the rights of family members of EU citizens, specifically ensuring the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen.
• Proportionality under Article 8 ECHR was applied to determine that the removal of the Appellants would be a disproportionate interference with their rights to private and family life.

Precedent Name

Cited Statute

Judge Name

Passage Text

• The Appellants' human rights appeals are allowed.
• The judge's decision is set aside.
• in dismissing the appeal, the judge materially erred in law by failing... Ruiz Zambrano (European citizenship) [2011] EUECJ C-34/09;