Latest on Zambrano carers and the EU Settlement Scheme

On 9 June 2021, in the case of Akinsanya, the High Court found that the definition of Zambrano carers in the rules for the EU Settlement Scheme was wrong, insofar as it prevented those with permission to remain under another part of the Immigration Rules from applying.

With the deadline to apply under the EU Settlement Scheme around the corner, on 30 June 2021, potential Zambrano carers are in a difficult position. Ms Akinsanya did ask the High Court to order an extension to the deadline so that people affected by this ruling have more time to work out what to do. The result is a consent order, dated 17 June, in which the Home Office has agreed to accept Zambrano applications after the usual deadline. But in many cases it will still be best to submit an application before 30 June if possible.

What does the consent order say?

The full consent order can be found at the end of the judgement, but here is the gist of what the order says:

1. The Home Office will reconsider Appendix EU as it applies to Zambrano carers. Until such time as it has reconsidered the rules (which it is unlikely to do until they have a decision by the Court of Appeal on their application for permission to appeal), the Home Office will pause decision-making on all Zambrano applications.

2. A Zambrano application under Appendix FM made on the same grounds as a Zambrano application under the EU Settlement Scheme will not vary the EUSS application, and vice versa. This was important to clarify because an applicant can’t usually have two immigration applications on the go at the same time.

Normally, when an applicant has an application pending under one part of the Rules, and then submits a second application under another part of the Rules, that second application “varies” the first one, meaning that the first one is “cancelled” and only the second one gets decided. The order has now confirmed that this general rule does not apply to Zambrano and Appendix FM applications, as long as they are “based on the same circumstances”.

3. The Home Office will confirm when it has reconsidered the Zambrano EUSS rules. It will then need to publish a policy confirming that all Zambrano applications submitted after that date, and for a period of at least six weeks beyond that, will be deemed to have been submitted “on time” for the purpose of Appendix EU. In other words, it will be possible to submit an application after 30 June 2021.

However, this does not mean that there is no deadline. The deadline is still 30 June 2021. For many applicants, including those who do not currently have any permission to be in the UK, it is still important to try to submit an application before 30 June — including so that they can work in the UK.

4. If someone without immigration status in the UK is “picked up” by the Home Office during those six weeks, and they are eligible for Zambrano status, then the Home Office should give them an opportunity to make an application within 28 days (and put that in writing).

5. Those who apply before 30 June 2021 will be issued with a certificate of application confirming their entitlement to work, study and rent in the UK until a decision is made on their Zambrano application. The Home Office hasn’t made a decision about those who apply after 30 June 2021 — and that is another reason why it is still a good idea to apply before the deadline.