The CA referred three questions (see §30) concerning the issues below to the Court of Justice of the European Union. NA is a Pakistani national. Following the break down of her marriage to a German national she retained custody of their two German national children, who were born in the UK. The SSHD appealed the decision of the UT that the A has a right of residence, under Article 20 of the Treaty on the Functioning of the European Union (“the TFEU”)/Ruiz Zambrano v Office national de l’emploi [2012] QB 265, and under Article 12 of Regulation (EEC) No. 1612/68 (“Regulation 1612/68”). The SSHD did not appeal against the UT’s Article 8 decision; the appeal was allowed after the SSHD conceded that it was not realistic to expect the children (the EU citizens) to live in Germany.

The appeal centred on whether the finding that removal to Germany would be a breach of Article 8 was equally applicable to the Article 20/Zambrano claim, the argument being that once there had been a finding that it was not realistic for NA and her children to live in Germany they would in practice be obliged to leave the territory of the EU. The CA found that there is no authority on the question of whether an EU citizen has a right to reside in a host Member State where it had been accepted that removal would breach Article 8.

The second challenge concerned the finding by the UT that domestic provisions (derivative rights of residence conferred by regulation 15A of the Immigration (European Economic Area) Regulations 2006) imposed a further condition not outlined in Regulation 1612/68, which provides for children’s access to education when residing in a Member State. The CA found that the authorities cited did not expressly preclude or support an implied condition that the EU national parent must be in the host Member State when the child enters education.

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