“Hand-to-mouth” citizenship: decision time for the UK Supreme Court on the substance of Zambrano rights, EU citizenship and equal treatment

TY - JOUR

T1 - “Hand-to-mouth” citizenship

T2 - decision time for the UK Supreme Court on the substance of Zambrano rights, EU citizenship and equal treatment

AU - O'Brien, Charlotte Rachel

N1 - © 2016 Informa UK limited, trading as Taylor & Francis Group. This is an author-produced version of the published paper. Uploaded in accordance with the publisher’s self-archiving policy. Further copying may not be permitted; contact the publisher for details

PY - 2016/5/19

Y1 - 2016/5/19

N2 - UK benefit rules strip Zambrano residence rights, for UK national children and their third country national primary carers, of equal treatment entitlement. These rules are challenged in a case pending before the UK Supreme Court. This piece argues that Zambrano creates an EU-citizenship based right to reside which necessarily entails equal treatment. UK national children in Zambrano families fall within the scope of EU law, so are not prevented by the wholly internal rule from claiming equal treatment with EU national children in Teixeira families. And they are protected by equal treatment as a general principle of EU law, which requires equal treatment with other UK national children. The justifications for automatic unequal treatment put forward before, and accepted with alacrity by, the Court of Appeal, are poorly reasoned and ill-matched with the rules in question – most notably because Zambrano families may have strong connections with the UK. A CJEU reference is likely; a Zambrano right is the right to reside in the Union - it is the right to have EU rights. The substance of EU citizenship is at stake.

AB - UK benefit rules strip Zambrano residence rights, for UK national children and their third country national primary carers, of equal treatment entitlement. These rules are challenged in a case pending before the UK Supreme Court. This piece argues that Zambrano creates an EU-citizenship based right to reside which necessarily entails equal treatment. UK national children in Zambrano families fall within the scope of EU law, so are not prevented by the wholly internal rule from claiming equal treatment with EU national children in Teixeira families. And they are protected by equal treatment as a general principle of EU law, which requires equal treatment with other UK national children. The justifications for automatic unequal treatment put forward before, and accepted with alacrity by, the Court of Appeal, are poorly reasoned and ill-matched with the rules in question – most notably because Zambrano families may have strong connections with the UK. A CJEU reference is likely; a Zambrano right is the right to reside in the Union - it is the right to have EU rights. The substance of EU citizenship is at stake.

KW - equal treatment

KW - EU citizenship

KW - general principles of EU law

KW - proportionality

KW - real links

KW - scope of EU law

KW - substance of nationality

KW - Zambrano right to reside

UR - http://www.scopus.com/inward/record.url?scp=84969722223&partnerID=8YFLogxK

U2 - 10.1080/09649069.2016.1183556

DO - 10.1080/09649069.2016.1183556

M3 - Article

SN - 0964-9069

VL - 38

SP - 228

EP - 245

JO - Journal of Social Welfare and Family Law

JF - Journal of Social Welfare and Family Law

IS - 2

ER -