Yesterday, 9 June 2021, High Court ruled that it is unlawful for the Home Office to exclude Zambrano carers from the ambit of EU Settlement Scheme where the carers have been granted or may be granted leave to remain under Appendix FM of the rules (R (Akinsanya) v SSHD,  EWHC 1535 (Admin)).
Zambrano carer is a non-British parent of a British child who derives the right of residence in the UK from the child’s nationality and the child’s right of residence in the UK which stems from British citizenship. In order to rely on this right, the parents have to show that the child couldn’t be realistically expected to remain in the UK if the parent (or both parents) had to leave.
The name Zambrano comes from the name of the case decided by the Court of Justice of the European Union in March 2011. It was decided in the context of EU law and the judgment declared it unlawful for Member States to refuse the right of residence to the parents of an EU national child if, as a result, the EU national child would be deprived of the advantages of being brought up in the EU.
This judgment was later reflected in the EEA Regulations through amendments made in November 2012, and then in the Immigration (European Economic Area) Regulations 2016 which replaced the 2006 Regulations with effect from 1 February 2017, with further amendments made in 2019.
This principle was reviewed a number of times both by the European court and the UK courts, and its operation was significantly reduced. For example, it became more difficult to rely on this principle for families where one of the parents had a right of residence independently of the child. Most case law addressed the meaning of the words “the British citizen would be unable to reside in the UK” – trying, unsuccessfully, to establish a rule that would apply in any scenario and give certainty to applicants and their advisors. For example, whether leaving a child with another family member, a friend, or a foster carer was an option that would enable the child to stay in the UK without the parent.
In March 2019 the Regulations were amended to cut this Gordian knot in a way that was more generous than strictly required by CJEU case law: the definition of carer allowed care to be shared equally between both parents and the reference to the main carer leaving the UK was to be read as both carers leaving the UK. This, at least on the face of it, resolved the dispute if it was reasonable to expect the child to stay in the UK with one parent if the other was required to leave.
When the EEA Regulations 2016 were incorporated into Appendix EU of the Immigration Rules, a further changed crept in: only those who didn’t qualify for leave to remain under the other parts of the Immigration Rules (namely Appendix FM) were entitled to take advantage of the more generous provisions of the EU Settlement Scheme.
In R(Akinsania) v SSHD, Mr Justice Mostyn considered whether it was lawful for the Immigration Rules to adopt a more restrictive approach than the Regulations and found that this is not permissible in law. The immigration rules or the policy of the Secretary of State may be more generous than required by the source document, but the rights conferred by a statutory instrument cannot be scaled back.
In practical terms this means that carers of British citizens (mainly non-British parents with a British child) who were previously recognised as holding derived rights of residence under the EEA Regulations but later switched into the Immigration Rules can now make an application under the EU Settlement Scheme. This may provide a quicker route to indefinite leave to remain and a saving of thousands of pounds.
In principle, this interpretation of the Regulations may also open the door for families with British children who never made an application under the EEA Regulations or Appendix EU – as the Regulations do not require previous recognition of the derivative right. However, the Home Office will most likely do their best to resist this.
The Home Office is seeking permission to appeal to the Court of Appeal and the Claimant’s lawyers have requested that EU Settlement Scheme should be extended for Zambrano carers beyond 30 June 2021 as there will be no certainty on the correct position in law until a final decision of the Court of Appeal, or potentially the court above.
In the meantime, our recommendation to all Zambrano parents is to apply for settled or pre-settled status before 30 June.