EDF Gendering Brexit Blog series: Who speaks for the Zambrano Families? Multi-level abandonment in the UK and EU

An intersectional analysis of Brexit suggests that Black British children are the forgotten victims of the decision to leave the EU. Due to the nationality of their primary carer, their rights as British and EU citizens have been pushed aside in the Brexit negotiations by both the European Commission and the UK government.

Professor Iyiola Solanke from the University of Leeds discusses the forgotten Zambrano Families for the Gendering Brexit Blog series. 

The abandonment of black women and children is illustrated in the campaigns on enjoyment of EU citizenship rights as well as in UK legislation and case law. Campaigns focus on just two groups enjoying free movement and residence rights under EU law –  UK citizens living in other parts of the EU and EU citizens living in the UK. Excluded are stationary EU citizens (many of whom are infants) and their parents from beyond the EU (many of whom are female) who also derive residence rights from EU law – the so-called ‘Zambrano Carers’ whose rights were established under Article 20 TFEU in a case of the same name before the Court of Justice of the European Union (CJEU).

Since Zambrano, it has become apparent that the majority of those benefitting from Zambrano citizenship rights under EU law are families headed by black women. According to data from the Department of Work and Pensions (DWP), 57% of Zambrano carers have Nigerian, Jamaican or Ghanaian nationality. In their gender equality analysis, the DWP also noted that 94% of Zambrano carers are lone parents and of these only 21% are men – 79% are women. The link with EU citizenship is crucial for the black British children in their care because it provides residency rights under EU law for their parents from beyond the EU – without its protection the parents face deportation.

A key question is therefore what will happen to these parents and their children – who are British citizens –  after Brexit? How will these British children continue to enjoy the most fundamental necessity of childhood – parenting?

With less than two months to go until Exit Day, neither the UK nor the EU have specified what rights these children and their parents will have. This question is still not on the agenda of any of negotiators and activists in Brussels and London, even though it concerns a status straddling national immigration law and EU law. The main Brexit campaign groups represent white, adult, able-bodied women, men and their families who have the skills, qualifications and resources to cross borders repeatedly. There is no Brexit campaign to defend the interests of non-migrant black British child citizens and their migrant non-EU mothers even though EU law also provides as an exception residency rights for citizens who have not moved to another member state. Those benefitting from static-citizenship rights under EU law tend to be children and non-EU nationals, two groups not represented by either of these mainstream campaigns. As a consequence of their invisibility in campaigns and negotiations, these Zambrano families were explicitly excluded from the protection set out in the December 2017 Joint Report, and the current settlement scheme. The guarantees set out in these schemes are all premised upon the Citizenship Directive. Those who do not fall within this Directive – non-EU nationals, non-migrant EU and UK citizens – are currently in a legal vacuum.

In addition, the British government have adopted legislation that forces these families to live in destitution. As a result of the Zambrano Amendments, these British children do not receive entitlements such as free school meals, school uniforms or travel passes. They and their mothers are dependent for survival upon funding provided by local authorities using limited emergency powers in Section 17 of the Children Act 1989. This raises questions not only about race and citizenship but also the likely childhood experiences and integration of a new generation of black British citizens raised under such conditions. The Zambrano Amendments effectively disenfranchise a social group already characterised by marginalization. If the (mostly female) parents are unequal residents, the children will as a corollary be unequal citizens, not only in childhood but also into adolescence and potentially throughout adulthood.

This action may be expected of the British government, given its official commitment to create a hostile environment towards immigrants regardless of their relationship to British citizens and Britain. Although the legality of the Zambrano Amendments has been challenged in a series of cases, they have ultimately been upheld by the Supreme Court despite the absence of strong evidence to support them.

At present, children of Zambrano carers, who are British and EU citizens, are protected by neither the UK nor the EU. Neither politicians nor judges have protected their right to fully enjoy the privileges available to their fellow citizens in the UK and across the EU. Zambrano infants have been abandoned by the UK and the EU in the Brexit negotiations.

The goal of Brexit to ‘make Britain great’ should not be at the expense of vulnerable citizens: black British children. These children should not be treated like migrants simply because their parents come from beyond the EU. They should enjoy their full birthrights as British citizens. This requires the government to repeal the Zambrano amendments and the European Commission to strengthen the Zambrano principle by anchoring an explicit mention of the concept of ‘best interests’ of the child in any Withdrawal Agreement (WA) concluded before the UK leaves the EU.

The views expressed in this blog series may not necessarily reflect EDF’s official positions.

Professor Iyiola Solanke holds the Chair in EU Law and Social Justice at the University of Leeds and an Academic Bencher of Inner Temple. Her recent publications include Discrimination as Stigma (Hart, 2017) and EU Law (Pearson, 2015).

Read more about her work in Gender and Queer Perspectives on Brexit.