The foundations of EU citizenship
The central question in EU citizenship law is not only how rights are conferred but where they originate. In Zambrano, the Court confirmed that EU citizenship confers Treaty rights under Article 20 TFEU.
The Court held that national measures cannot deprive Union citizens of the genuine enjoyment of the substance of the rights conferred “by virtue of their status as citizens of the Union”. This made EU citizenship an autonomous legal basis for rights.
The courts recognised two sources of citizenship rights: those derived directly from the Treaties and those arising from Directive 2004/38 in cross‑border situations. Although the Court occasionally adopted a broad approach, it maintained that fundamental rights questions are primarily for national courts.
Prevention of discrimination remained central. Rottmann affirmed the importance of preventing statelessness and the inseparable link between Union citizenship and nationality of a Member State.
Wholly internal situations and the significance of Zambrano
The leading authority on wholly internal situations involving minors is Zambrano.
The case concerned a refusal to grant residence to a third‑country national (TCN) who was the primary carer of dependent minor EU citizens. The Court held that EU citizenship is not entirely dependent on movement and that the right to reside in EU territory can exist independently of cross‑border activity.
Article 20 TFEU was engaged because the denial of residence would deprive the children of the genuine enjoyment of their rights. Directive 2004/38 was set aside, releasing the case from the conditions of movement. Two strands of EU citizenship emerged: one based on Article 21 TFEU and Directive 2004/38, and another based on Article 20 TFEU and the genuine enjoyment principle.
Economic or family unity reasons alone, including those under Article 8 ECHR or Article 7 of the Charter, are insufficient to award residence. The decisive factor is whether refusal of residence would deprive the minor of genuine enjoyment of their rights.
The Court draws back: Dereci
In Dereci, the Court limited the scope of Zambrano.
It held that refusal of residence undermines the effectiveness of Union citizenship only where a relationship of dependency exists that would compel the Union citizen to leave the territory of the Union as a whole. The Court developed the test of “choice” and clarified that Article 7 of the Charter cannot be invoked as a free‑standing right.
If a national measure does not produce a deprivation effect, it does not fall within the substantive scope of EU law. This reaffirmed that the Charter cannot extend the application of EU law beyond its proper limits.
The Patel case: dependency and adult carers
Patel v Secretary of State concerned a reversed situation involving dependent parents. The TCN was the primary carer for his adult British citizen father and applied for a derivative residence card under Regulation 15A of the Immigration (EEA) Regulations 2006, which implemented Directive 2004/38.
The First‑tier Tribunal accepted dependency and considered Articles 7 and 25 ECHR, but could not establish compulsion. The application was dismissed. The Court of Appeal confirmed that Article 8 ECHR does not give non‑settled TCNs a general right to avoid immigration restrictions, consistent with Agyarko.
The appeal focused on whether the Regulation 15A(4)(b) criteria were met. The Tribunal accepted that Zambrano is not restricted to children. The relevant criteria were: primary care‑giver of British citizens, residence in the UK and inability of the EU citizen to reside in the EEA if the carer left. The case did not meet the exceptional circumstances required, and compulsion was not established.
Children versus adults: the compulsion test
Cases involving children are treated differently because dependency is stronger and more likely to compel the child to leave the Union. In K.A., the Court clarified that derivative rights for adult EU citizens arise only in exceptional circumstances. O v Maahanmuuttovirasto reaffirmed the compulsion test.
Following Zambrano, the UK amended the Immigration (EEA) Regulations to reflect Directive 2004/38. The courts consistently distinguished between compulsion in cases involving children and adults. Although dependency was present in Patel, compulsion was not. The exceptional circumstances test from Dereci remains central.
As Arden LJ stated, the Charter cannot extend the application of EU law. The test is compulsion, not choice.
Conclusion
The development of derivative rights under EU citizenship reflects a careful balance between autonomy of Union citizenship and respect for national competence.
While Zambrano expanded the scope of Article 20 TFEU, subsequent cases such as Dereci, Patel and K.A. refined and limited its reach. The decisive factor remains whether refusal of residence would compel the Union citizen to leave the territory of the Union.
Dependency alone is insufficient. The compulsion test ensures that derivative rights remain exceptional, preserving the boundaries of EU law while protecting the genuine enjoyment of citizenship rights.
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