Solanke, Iyiola

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The Quality of SovereigntyIyiola Solanke 2023-03-27T17:15:41It can generally be agreed that the purpose of sovereignty is to enable a governmentto protect the best interests of its citizens. To what extent did UK membership of theEU preclude this?In order to answer this question, evaluative criteria are required. In the contextof the EU, the discussion on sovereignty tends to focus on quantity – the greaterthe scope of action of the EU and its institutions, the lower the sovereignty of theMember States. From this perspective, sovereignty is a zero-sum affair – less meansless. However, sovereignty can also be assessed from a qualitative perspective,with a focus on its quality, or character, rather than its scope. Needless to say, thecharacter of sovereignty should also protect the best interests of the citizens.Taking this latter as my focus, my question is therefore whether membership of theEU affects the character of sovereignty and prevents Member States from protectingthe best interests of its citizens. Such a broad question will be narrowed down in thisshort contribution to a focus on equality. In the following paragraphs I will thereforeexplore whether withdrawal from the EU by the UK was a prerequisite to improve thequality of sovereignty in the UK and protect the best interests of the citizen in relationto equality.An answer to this question can be found by examining the response of the Britishgovernment to the decision of the Court of Justice of the EU (CJEU) in the Zambranocase. The response suggests that EU membership did not affect the quality ofsovereignty and in contrast demonstrates the ongoing autonomy of the UK todetermine the character of sovereignty whilst still an EU Member State. A closeexamination shows that in fact the government was able to use its sovereign powersto tailor-make inequality by introducing new laws that created a hostile environmentnot only for tax-paying non-nationals but also for the British citizen children in theircare.The Zambrano DecisionThe Zambrano case concerned the attempt by the Belgian authorities to deporta family who had remained in the country after an unsuccessful claim for asylum.Despite the failed asylum claim, the family resided lawfully – the father had fullemployment and paid all relevant taxes. Whilst there, two children were born whowere given Belgian citizenship and so as per Article 21 TFEU automatically becameEU citizens.The attempt to deport the parents was deemed contrary to EU law by the CJEU.Disagreeing that this was a ‘wholly internal’ situation, Advocate General Sharpstonargued that persons should not be treated in the same way as goods and services- 1 -and taking Rottman and Chen as a new starting point, she argued that oncenationality is granted to persons,… the children [Jessica and Diego] became citizens of the Union andentitled to exercise the rights conferred on them as citizens, concurrentlywith their rights as Belgian nationals. They have not yet moved outside theirown Member State. Nor, following his naturalisation, had Dr. Rottman. If theparents do not have a derivative right of residence and are required to leaveBelgium, the children will, in all probability, have to leave with them. Thatwould, in practical terms, place Diego and Jessica in a position capable ofcausing them to lose the status conferred [by their citizenship of the Union]and the rights attaching thereto. [para. 95]In response the Grand Chamber of the CJEU concluded that Article 20 TFEU doesindeed preclude a Member State from refusing residency to a third country nationalupon whom his minor children, who are European Union citizens, are reliant – sucha decision was deemed to deprive those children of the genuine enjoyment of thesubstance of the rights attaching to the status of European Union citizen.The response in the UK I – legislative autonomy andthe quality of sovereigntyZambrano extended the boundaries of EU citizenship beyond the limits set out inthe earlier case of Chen: it extended derived rights to the carers of non-migrantEU citizens, granting them residency rights under EU law regardless of theirstatus under national law. This seemingly infuriated the British authorities – whilesome countries, such as Ireland re-opened previous cases to re-appraise removaldecisions, in the UK national law was in 2013 specifically changed to limit the impactof Zambrano. The objective was to maintain the specific character of a hostileenvironment to migrants in Britain, as per official Conservative/Liberal Democraticpolicy by intentionally designing measures to exclude Zambrano carers from keymainstream benefits: sovereignty was ultimately used against the best interests ofchild British citizens.The legislative response saw the introduction of three Regulations (SI 2012/2587,2012; SI 2012/2612, 2012; SI 2012/2588, 2012) designed to exclude anybodyresiding on the basis of Zambrano from welfare rights that they would otherwisehave as lawfully resident persons. In 2012, at the same time that the EEARegulations 2006 implementing Citizenship Directive 2004/38 were amended to giveeffect to the Zambrano decision, the Coalition government introduced these statutoryinstruments as part of the Immigration (European Economic Area) (Amendment)(No.2) Regulations 2012 (the ‘Zambrano Amendments’) which banned Zambranocarers – those in work and those out of work – from mainstream income-linkedhousing and welfare benefits including income support, jobseekers allowance,employment allowance, pension credit, housing benefit, council tax benefit, childbenefit and child tax credit. Zambrano carers became part of a group that has ‘norecourse to public funds’ or NRPF.- 2 -The response in the UK II – judicial autonomy andthe quality of sovereigntyAlthough challenged before the national courts, the Amendments have beenupheld and sanctioned by the UKSC.  The judicial response was to support theAmendments as lawful in a series of cases, culminating in the Supreme Courtdecision in HC. Ultimately, the UK Supreme Court focused on the immigration statusof the non-UK national rather than parental status or the status of the child.In one of the first cases, Harrison, Elias LJ introduced in the standard dicta forunderstanding the Zambrano principle. Dismissing a broad approach to the CJEUruling, he stated:… The right of residence is a right to reside in the territory of the EU. It isnot a right to any particular quality or life or to any particular standard ofliving. Accordingly, there is no impediment to exercising the right to reside ifresidence remains possible as a matter of substance, albeit that the qualityof life is diminished (paragraph 67).The Harrison dicta was repeated in all challenges to the Zambrano amendments.The idea of focusing on the best interests of the child was explicitly excluded –judges confirmed that the quality of life of these infant black British citizens is not aprimary concern. For example, in Hines Vos J. explicitly stated that the ‘best interestof the child’ was not a priority. Maureen Hines, a Jamaican citizen without permissionto remain in the UK, was refused housing assistance despite being mother to afive-year old British boy, Brandon. Lambeth Council decided that even if the refusalcaused Hines to leave the UK, Brandon’s father, who had an EU right to permanentresidence in the UK, could – and partially did – look after him.Hines unsuccessfully appealed Lambeth’s decision but two specific questionswent to the Court of Appeal: first, should a higher level of review apply giventhe engagement of Article 20 TFEU and secondly, what is the correct test whenconsidering whether the removal of the mother jeopardized the continued residenceof the EU citizen: the EU Charter ‘best interests’ of the child especially given Articles7 (respect for private and family life) and 24 (rights of the child) CFR or the UKstatutory test of practicality laid out in Regulation 15A (4A) (c) of the ImmigrationRegulations?Vos J. ruled that…. The reviewer was not obliged to consider Brandon’s interests asparamount, though his interests were indeed to be taken into account …(Hines EWCA Civ 660, 25).The courts in the UK held that the substance of the Zambrano right to resideremained intact even if the Zambrano carer was left destitute and thus unable to carefor their child who was a British/EU citizen. Zambrano carers were left in no doubt- 3 -that – at least while the UK was a member of the EU – they had a right to reside;however, they could not expect support to provide safe and secure lives for theirBritish child. For their children who are British citizens and differed from other Britishcitizens only because their primary carer was not an EU national, it meant they hadno right to the quality of life guaranteed to their fellow citizens in similar need.Throughout the cases, only Supreme Court President Lady Hale recognised thatZambrano carers “are not like any other third country nationals. They have British (orother EU citizen) children dependent upon them” (paragraph 41). She made explicitthe link between the treatment of the mother and the life-experience of the Britishchild:I have found this a very troubling case. It is not a case about adults’ rights.It is a case about children’s rights – specifically the right of these two veryyoung British children to remain living in their own country and to have thesupport which they need in order to enable them to do so. Self-evidentlythey need the support of their mother in the shape of the care which she isable to give them. But they also need support in the shape of a place to liveand enough to live on (paragraph 39).Finally, COVID demonstrates Lady Hale’s foresight in posing the fundamentalquestion ignored by all others:  how the “…children would be supported if the parentlooking after them was unable to work, whether because of the demands of childcareor for any other good reason”’ (paragraph 41). Although the Zambrano Amendmentswere temporarily disapplied by some councils, they may indeed have contributed tothe disproportionate rates of infection, hospitalisation and death during COVID-19 inBlack and minority ethnic communities across the UK.Autonomy to determine the quality of sovereigntyThe purpose of this post is to consider sovereignty by examining the extent towhich membership of the EU prevented the UK government from pursuing the bestinterests of its citizens. In order to answer this question, I looked not at the scope ofsovereignty but at its character, in particular in relation to equality.Analysing the legislative and judicial response of the government to the CJEUdecision in Zambrano shows how national law was used to create first, hostilityto citizens from beyond the EU and second, a new generation of unequal –predominantly – Black British citizens: the hostile environment for all immigrantswas transferred into an especially hostile environment for (black) British citizens.The Amendments made their parents unequal residents, transforming the childreninto unequal citizens, a status that could potentially stretch beyond childhood intoadolescence and throughout adulthood. Instead of British nationality improving thesituation of the non-EU parent, non-EU nationality worsened the situation of theBritish child.The Zambrano Amendments demonstrate the ability of the government to exerciselegislative autonomy in Britain to maintain the desired character of sovereignty- 4 -despite membership of the EU. Furthermore, the Zambrano carers were also initiallyexcluded from the EU Settlement Scheme, created for EU citizens in the UK to retaina right to reside. It was only from May 1st 2019 that those resident in the UK asZambrano carers became eligible to apply for settled status through this scheme,albeit with limited success. The decision by the Court of Appeal in the Akinsanyacase further increased the scope of application for Zambrano carers. Since Brexit,Zambrano carers in the UK therefore have lost a right to reside based on EU lawand must apply for this right under national law. It is a status that now only applies tothose present in the UK prior to Brexit.The UK response to the Zambrano decision illustrates how national sovereignty isexercised as a member of the EU – the government used national law to restrict tothe minimum its obligations under EU law to carers and parents from beyond the EU/EEA looking after EU/British nationals. It is noteworthy that during the many years ofdeliberation on Zambrano Amendments, at no point was a question referred to theCJEU under Article 267 TFEU, highlighting the extent to which the British judiciaryclaimed competence to determine the quality of sovereignty in the UK. This furthersuggests that even as part of the EU, the UK retained autonomy to determine thequality of legislative and judicial sovereignty. This blog post builds upon Iyiola Solanke (2020) ‘The Impact of Brexit on BlackWomen, Children and Citizenship’ Journal of Common Market Studies.- 5 -

The Quality of Sovereignty

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The Quality of Sovereignty

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