Change of the Home Office policy regarding Zambrano carers

On 2 May 2019, the Home Office published an updated guide for “Derivative rights of residence” category, which includes information about the rights of primary carers of EEA nationals in the UK under the Immigration (European Economic Area) Regulations 2016 (the 2016 regulations). The 63-page document comes with an unexpected twist for the Zambrano cases.

Zambrano principle applies to persons from a country outside the European Union, who provide care for a British citizen (child or dependent adult) in the UK. His/her presence in the country is mandatory to allow the child or the adult dependant to continue residing in the United Kingdom (or in any other EU country). The principle derives from a 2011 Zambrano judgment. The ruling found that if a child or a dependent adult from the UK (or the EU) lives in the United Kingdom, and needs a parent/carer from a third non-EU country, such a carer will be entitled to reside in Britain in accordance with European law. This provided that his/her absence would force the British citizen in question to leave the EU zone. The resulting right to reside is a matter of EU law, not UK Immigration Rules.

The new guidance, however, states that potential Zambrano candidates in order to regulate their immigration status in the UK are now required to apply under Appendix FM to the Immigration Rules or any other Article 8 ECHR claim. In other words, applicants no longer have a choice between using the Zambrano route (which is essentially a part of EU law), or the UK Immigration Rules.

What does the new policy mean in real life?

Previously, the applicant could consider the pros and cons of each way and decide how he/she wants to apply - through Zambrano route or in accordance with the human rights of the UK immigration law. One of the decisive factors could be the fee for the application - £65 per under EU law (Zambrano) versus £2,000 under British Immigration Rules. Also very important factor is the ability to get Indefinite Leave to Remain in the UK in future, which is not possible under the Zambrano route.

Now all applicants must submit applications under Appendix FM to the Immigration Rules or a human rights claim. It is very difficult to imagine a situation where the applicant is technically unable to do so. Even if the carer does not meet the requirements of the UK Immigration Rules, his/her removal from the UK would violate the rights under Article 8 and the applicant will be able to file an application outside of the immigration rules.

The new parallel EU settlement scheme under the UK Immigration Rules only just recently included the category of Zambrano carers to be eligible to apply for settlement (since permanent residence is denied to them under the 2016 regulations as outlined above). Within this EU settlement system, Zambrano carers can apply for settled status after five years of residence in the United Kingdom or pre-settled status if they have lived in the country for less than five years. The EU Settlement Scheme is free and straightforward. This was a step forward; however, the celebrations did not last long. The new guidance indicates the same interpretation might extend to the settlement scheme and effectively prevent the Zambrano applicants from joining if “they do not have leave to enter or remain in the UK granted under another part of the Rules”.