A person is considered a ‘Zambrano carer’, should they be a non-EEA national primary carer of a British citizen who would be unable to reside in the UK, if that primary carer were required to leave. Zambrano carers have been recognised as having a right to reside in the UK under EU law following the decision of Ruiz Zambrano v Office National de l’Emploi (C-34/09) [2012] QB 265.

 

Today’s article provides an update on the case of Akinsanya v Secretary of State for Home Department, which we also previously looked at in an article we published a few months ago. See here.

 

Following the UK leaving the EU, the Secretary of State drafted the provisions relating to Zambrano carers in the Appendix EU to the Immigration rules to exclude all those that already have leave to remain on another basis. For example, leave on family life grounds or parent of a settled child, which the majority of non-EEA national primary carers would be eligible for.

 

The benefit of proceeding with an application under the EU Settlement Scheme as a Zambrano carer as opposed to any other application is that there is no fee, and you could obtained settled status after 5 years, as apposed to an application under appendix FM, where you would pay substantial fees, follow strict requirements and face a 10 years wait to settlement.

 

R (on the application of Akinsanya) v Secretary of State for the Home Department [2021] EWHC 1535 (Admin)

 

In this case, held on 9th June 2021, the High Court held that a primary carer of a UK citizen child may have a derivative right to reside on Zambrano grounds, even where they are entitled to limited leave to remain on another basis.

 

This was an important decision, and parents waited eagerly for the Secretary of State to reconsider her guidance. If implemented as per the judgement, this would allow many parents a quick route to settlement and be afforded the enhanced protection that Appendix EU allows.

 

Home Office publishes policy response to Akinsanya decision 

 

The Home Office published their much-anticipated policy response to the Court of Appeal’s decision in Akinsanya v Secretary of State for the Home Department on 13th June 2022.

 

The Home Office has stated that:

 

‘the Home Secretary has carefully considered the Court of Appeal judgment and has decided that she no longer wishes that definition in Appendix EU to reflect the scope of the 2016 Regulations but wishes it to reflect the scope of those who, by the end of the transition period, had an EU law right to reside in the UK as a Zambrano primary carer, in line with the originally stated policy intention’.

 

This means that applicants will be eligible for EU Settlement Scheme only if they met the criteria of Zambrano primary carer and did not have any other leave to enter or remain in the UK at the end of the transition period and during the relevant period relied upon.

 

Applications for Zambrano carers who do meet the “no existing leave” rule can apply to the EU Settlement Scheme form 13th June 2022 until 25th July 2022 and they will be deemed as having reasonable grounds for missing the deadline.

 

Our comments

 

This policy response is of course disappointing news for many who awaited this guidance in the hope that there would be a huge change to the settlement rules.

 

For all those who meet the Zambrano requirements, it would be best to make an application promptly and before 25th July 2022.

 

Finally, for all parents that have made a Zambrano application and no longer qualify, it would be prudent to make an application under the Immigration rules without delay.

 

Should you require further assistance then please do get in touch.

 

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