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New Home Office Guidance on Zambrano Carers

The Home Office has issued its much anticipated guidance in respect of individuals deemed to meet the definition of ‘a person with a Zambrano right to reside’ under Appendix EU. 

Zambrano Right to Reside

Following the case of C-34/09 Zambrano, under EU law a non-EU citizen who was a primary carer of a British citizen could obtain a derivative right to reside in the UK. The Zambrano right to reside was most recently incorporated into domestic legislation in Regulation 16 of the Immigration (European Economic Area) Regulations 2016. A number of considerations, which included the fact that it was not possible to apply for permanent residence as a person with a derivative right to reside, meant that many individuals who may have been eligible chose to apply under alternative provisions in the Immigration Rules, for example under Appendix FM. However, under the provisions of Appendix EU published as a result of the UK’s departure from the EU, an individual who met the definition of ‘a person with a Zambrano right to reside’ could have the possibility of obtaining Settled Status in the UK. Unfortunately though, Appendix EU precluded individuals from meeting this definition if they already held leave to remain under the Immigration Rules.

In 2021, in R (Akinsanya) v Secretary of State for the Home Department [2021] EWHC 1535 (Admin), the High Court considered the definition of a ‘person with a Zambrano right to reside’ contained in Appendix EU. The rules had previously stated that a person who held permission under a route other than Appendix EU of the Immigration Rules could not be considered to meet the definition of ‘a person with a Zambrano right to reside’. In the judgement of Mostyn J, this provision was not in accordance with the EEA Regulations 2016 or EU law. In a consent order following this judgement, the Secretary of State was required to reconsider her definition of a ‘person with a right to reside’.  The judgement of the High Court was considered in our article here.

The Secretary of State appealed the decision of the Court of Appeal, leading to the case of Akinsanya v Secretary of State for the Home Department [2022] EWCA Civ 37 . In a judgement handed down on 25 January 2022, the Court of Appeal dismissed the government’s appeal. The Court of Appeal agreed that the Secretary of State had misunderstood domestic law in the EEA Regulations 2016. However, it was held that the provisions of Appendix EU were not inconsistent with EU law. A full discussion of the Court of Appeal’s determination is available in our article here

As highlighted in this article, although the Secretary of State was required to reconsider the definition of a person with a Zambrano right to reside, the Court was not expressing any view about how the Secretary of State should amend the terms of the EUSS. 

New Home Office Guidance on Zambrano Carers

What Does the New Guidance on Zambrano Carers Say?

On 13 June 2022, the Secretary of State published its guidance confirming the result of the reconsideration of the provisions of Appendix EU. The guidance summarises the relevant findings of Akinsanya. Firstly, it confirms the finding that the Home Office had erred in its understanding of Regulation 16(7) of the Immigration (European Economic Area) Regulations 2016 in defining ‘a person with a Zambrano right to reside’ in the Immigration Rules for the EUSS in Appendix EU. Secondly, it confirms the finding that as a matter of EU law (rather than domestic law in the EEA regulations),  a Zambrano right to reside does not arise when a carer holds leave to remain under another route.

As above, the Court of Appeal had not expressed a view on how the rules should be amended. In light of the determination of the Court of Appeal, the Secretary of State had a choice. She could amend the definition in Appendix EU so that is would be in line with the more generous provisions of the EEA Regulations, or she could make the decision to leave the provisions as they stood, resulting in a narrower provisions which does not recognise those who hold leave on another route has meeting the definition of a ‘person with a Zambrano right to reside’.

The direction that the Secretary of State decided to go is clear from the outset of her new guidance, which emphasises the limitations that Zambrano carers previously faced under EU law. She confirmed that Zambrano carers did not have a right under EU law to acquire a right of permanent residence, and that they are not covered by the Citizens’ Rights agreement. Their inclusion in the EUSS at all, she states, was a ‘more generous national provision, based on an intention to protect those lawfully resident in the UK by the end of the transition period by virtue of a Zambrano right to reside based on EU law.’

The Secretary of State’s guidance proceeds to confirm 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 (which have now been revoked) 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. She therefore intends to maintain the requirement in sub-paragraph (b) of the definition that the applicant did not, by the end of the transition period and during the relevant period relied upon, have leave to enter or remain in the UK (unless this was under the EUSS).”

What Does This Mean for Zambrano Applicants?

The upshot of this is that no changes will be made to the provisions of Appendix EU. Applicants will only be eligible to make an application as a Zambrano carer where they, by the end of the transition period (on 31 December 2020) and throughout the relevant period, did not hold leave to enter or remain in the UK (unless this was  under Appendix EU), and met the other relevant requirements of Regulation 16 of the EEA Regulations.

There will now be a substantial number of people who had been awaiting the change to the guidance, hoping that this may open up the Zambrano route to individuals who had held leave under another route. Those individuals will now need to consider making an application under Appendix FM, or an alternative route under the Immigration Rules.

What Is the Deadline for Zambrano Applicants? 

The deadline for applications under the EU Settlement Scheme was 30 June 2021. However, under the Consent Order, the Secretary of State had agreed that she would not determine any applications under Appendix EU made on the basis of a person having a Zambrano right to reside until she had completed the above reconsideration and had also agreed to decide on a reasonable period of time, no less than six weeks after the reconsideration, for applications to be made. The guidance, published on 13 June 2022, stated that:

From today, for a period of six weeks until 25 July 2022, people will be able to apply or re-apply to the EUSS as a ‘person with a Zambrano right to reside’ and be deemed to have reasonable grounds for having missed the deadline to apply, which was 30 June 2021.

Anyone who is eligible, and wishes to apply as a person with a Zambrano right to reside, should submit an application before this date. Where this deadline is missed, additional reasons will be required to constitute reasonable grounds for missing the 30 June 2021 deadline. An overview of the Secretary of State’s guidance on these provisions is available here.

Contact our Immigration Barristers 

For expert advice and assistance with an EUSS application, including as a Zambrano carer, contact our immigration barristers on 0203 617 9173 or complete our enquiry form below.

SEE HOW OUR IMMIGRATION BARRISTERS CAN HELP YOU

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