The Court of Justice of the European Union (ECJ) recently handed down judgement in the case of Ruiz Zambrano (C-34/09). The judgment creates a right to reside and work for the sole carer of a dependant British Citizen when that carer has no other right of residence in the UK and removing the carer from the UK would mean the British Citizen would have to leave the European Union. The UK Border Agency (UKBA) has considered the effect of this judgement and whether any changes are required to policy or law as a result. Until now, UKBA has not accepted applications made on this basis as there is no provision within the Immigration (European Economic Area) Regulations 2006 (the regulations) to issue documentation on this basis.
On 21 September 2011 UKBA announced that they would amend the regulations in due course to enable a person to be issued with a document confirming that they have a right to live in the UK as a result of the Ruiz Zambrano judgement. In the meantime, they will issue a Certificate of Application to those who are able to show:-
- Evidence that the dependant national is a British Citizen;
- Evidence of the relationship between the applicant and the British Citizen; and
- Adequate evidence of dependency between the applicant and the British Citizen.
This certificate will enable a person to work in the UK while their application is outstanding. Once changes to the regulations are made, the application will be given full consideration and documentation will be issued under the regulations to those who meet the final agreed policy.
Employers will be permitted to accept this certification, in combination with a positive verification from the employer checking service, as proof of right to work in the UK for up to twelve months. This document combination comes under entry 5 of list B within the “comprehensive guidance for employers on preventing illegal working” and will provide an employer with a statutory excuse against payment of a civil penalty for up to twelve months.