De Britse rechters in een Zambrano zaak: verwijdering van 1 ouder valt onder 8 EVRM en niet 20 EU
In deze zaak, Senada and others,
http://www.bailii.org/uk/cases/UKUT/IAC/2012/00048_ukut_iac_2012_ms_ors.html
gaat het om twee buitenlandse vaders getrouwd met Britse vrouwen die wegens criminele feiten op het punt staan uitgezet te worden. Dat is daar een automatisme als je een straf van meer dan 12 maanden hebt gekregen. Beide gezinnen beroepen zich op Zambrano. De rechters overwegen:
"89. In the present cases the mothers of all of the British citizen children are citizens themselves and cannot be removed as family members of a person facing deportation or in their own right. Although the removal of the father would have adverse economic impact on all the families, as well as the interests of each child living in a household with its father, it cannot be said that either the children or their mothers will be required to leave with him. There is an analogy with the case of Mr Dereci who was found not to have a Zambrano right of residence. Economic reasons for maintaining family unity are not sufficient.
90. We recognise that the appellants have submitted by way of reply that according to the Advocate General’s opinion an impairment of the exercise of the Treaty right of residence may suffice to engage the Zambrano principle. This was not how the Court answered the question, however, and in our judgment, if on the facts removal of the appellant will not require the children or spouse to follow because they have no capacity for exercising their Treaty rights independent of the person facing removal, what is being impaired is not the right to reside in the EU but the right to enjoy family life whilst so residing.
91. Each of the children are not accordingly dependent on their fathers for the exercise of their Union rights of residence and removal of the fathers will not deprive them of the effective exercise of that right of residence in the United Kingdom or elsewhere in the Union.
92. Cases where the remaining parent not facing removal is either a British citizen or a third country national will be governed by Article 8. It is in that context that the nationality of the remaining parent as well as that of the child has relevance.
93. Finally, we note that a further question on which we asked for the respondent’s assistance was in these terms:
“Does the respondent agree that in a case where a non-national parent is being removed and claims it is a violation of that person’s human rights to be separated from a child with whom he presently enjoys family life as an engaged parent, that a consequence of the CJEU’s judgment is that it is not open to the respondent to submit that an interference can be avoided because it is reasonable to expect the child (and presumably any other parent/carer who is not facing deportation/removal) to join the appellant in the country of origin? If not why not?”
94. To this Mr Devereux replied on 24 November 2011:
“We do accept, however, that in a case where a third country national is unable to claim a right to reside on the basis set out above it will not logically be possible, when assessing the compatibility of their removal or deportation with the ECHR to argue that any interference with Article 8 rights could be avoided by the family unit moving to a country which is outside of the EU”.
95. We shall take this helpful submission into account when we consider the application of Article 8 to each appellant’s case. We agree with it. This means that where the child or indeed the remaining spouse is a British citizen and therefore a citizen of the European Union, it is not possible to require them to relocate outside of the European Union or to submit that it would be reasonable for them to do so. The case serves to emphasise the importance of nationality already identified in the decision of the Supreme Court in ZH (Tanzania). If interference with the family life is to be justified, it can only be on the basis that the conduct of the person to be removed gives rise to considerations of such weight as to justify separation."
Vervolgens gaan de rechters over tot toetsing aan artikel 8 EVRM.
Ik raad het lezen van de hele uitspraak ten zeerste aan! (Alhoewel het zelfs voor iemand die iedere dag in het Engels converseert een kluif was).
WR
Law blog Klik op +1 als u dit een interessant artikel vindt en Google zal het dan beter zichtbaar maken in de zoekresultaten.
http://www.bailii.org/uk/cases/UKUT/IAC/2012/00048_ukut_iac_2012_ms_ors.html
gaat het om twee buitenlandse vaders getrouwd met Britse vrouwen die wegens criminele feiten op het punt staan uitgezet te worden. Dat is daar een automatisme als je een straf van meer dan 12 maanden hebt gekregen. Beide gezinnen beroepen zich op Zambrano. De rechters overwegen:
"89. In the present cases the mothers of all of the British citizen children are citizens themselves and cannot be removed as family members of a person facing deportation or in their own right. Although the removal of the father would have adverse economic impact on all the families, as well as the interests of each child living in a household with its father, it cannot be said that either the children or their mothers will be required to leave with him. There is an analogy with the case of Mr Dereci who was found not to have a Zambrano right of residence. Economic reasons for maintaining family unity are not sufficient.
90. We recognise that the appellants have submitted by way of reply that according to the Advocate General’s opinion an impairment of the exercise of the Treaty right of residence may suffice to engage the Zambrano principle. This was not how the Court answered the question, however, and in our judgment, if on the facts removal of the appellant will not require the children or spouse to follow because they have no capacity for exercising their Treaty rights independent of the person facing removal, what is being impaired is not the right to reside in the EU but the right to enjoy family life whilst so residing.
91. Each of the children are not accordingly dependent on their fathers for the exercise of their Union rights of residence and removal of the fathers will not deprive them of the effective exercise of that right of residence in the United Kingdom or elsewhere in the Union.
92. Cases where the remaining parent not facing removal is either a British citizen or a third country national will be governed by Article 8. It is in that context that the nationality of the remaining parent as well as that of the child has relevance.
93. Finally, we note that a further question on which we asked for the respondent’s assistance was in these terms:
“Does the respondent agree that in a case where a non-national parent is being removed and claims it is a violation of that person’s human rights to be separated from a child with whom he presently enjoys family life as an engaged parent, that a consequence of the CJEU’s judgment is that it is not open to the respondent to submit that an interference can be avoided because it is reasonable to expect the child (and presumably any other parent/carer who is not facing deportation/removal) to join the appellant in the country of origin? If not why not?”
94. To this Mr Devereux replied on 24 November 2011:
“We do accept, however, that in a case where a third country national is unable to claim a right to reside on the basis set out above it will not logically be possible, when assessing the compatibility of their removal or deportation with the ECHR to argue that any interference with Article 8 rights could be avoided by the family unit moving to a country which is outside of the EU”.
95. We shall take this helpful submission into account when we consider the application of Article 8 to each appellant’s case. We agree with it. This means that where the child or indeed the remaining spouse is a British citizen and therefore a citizen of the European Union, it is not possible to require them to relocate outside of the European Union or to submit that it would be reasonable for them to do so. The case serves to emphasise the importance of nationality already identified in the decision of the Supreme Court in ZH (Tanzania). If interference with the family life is to be justified, it can only be on the basis that the conduct of the person to be removed gives rise to considerations of such weight as to justify separation."
Vervolgens gaan de rechters over tot toetsing aan artikel 8 EVRM.
Ik raad het lezen van de hele uitspraak ten zeerste aan! (Alhoewel het zelfs voor iemand die iedere dag in het Engels converseert een kluif was).
WR
Law blog Klik op +1 als u dit een interessant artikel vindt en Google zal het dan beter zichtbaar maken in de zoekresultaten.
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