EU Settlement Scheme rejects majority of applications from Zambrano carers

Sep 20, 2020

Zambrano carers are usually single mothers with young British children fleeing domestic violence, often poor and vulnerable. Before the EU Settlement Scheme, Zambrano carers did not have a route to settlement in the UK.

However, latest figures show that 61% of Zambrano carers applying to stay in the UK under the EU Settlement Scheme have been rejected.

Zambrano carers

Written by Judit Adorjan

 

 

What are Zambrano rights?

Following the landmark  judgment of the Court of Justice of the European Union in the case of Ruiz Zambrano (C34/09), the primary carer of a British citizen living in the UK derives a right to reside if their removal from the UK would compel the British citizen to leave the European Union. That right to reside is a matter of EU law, rather than UK law.

Since this right of residence is not one conferred by Directive 2004/38/EC but derived from the right of Union citizenship contained in Article 20 of the Treaty on the Functioning of the EU, it is called a derivative right.

Those who acquire a derivative right of residence cannot:

  • bring family members to the UK under the regulations
  • obtain permanent residence in the UK
  • rely on public policy protection against removal or deportation from the UK that is given to those exercising free movement rights.

A person who meets the criteria for a derivative right of residence does, however, qualify for:

  • right of admission to the UK
  • right to an EEA family permit
  • right to a derivative residence card.

 

Who qualifies for a derivative right of residence?

An applicant must satisfy the following conditions to qualify for a derivative right of residence:

  • they must be the primary carer of a British citizen who:
    • is residing in the UK, and
    • would be unable to reside in the UK or in another EEA state if their primary carer were required to leave the UK.

A primary carer is defined in the Immigration (European Economic Area) Regulations 2006 section 15A(7) as:

  • a direct family member or legal guardian of the person from whom they would claim a derivative right, and
  • the person who:
    • has primary responsibility for that person’s care, or
    • shares the responsibility for that person’s care equally with one other person, and the other person:
      • has no right to reside in the UK as a result of any other provision of these regulations
      • has no right of abode in the UK by virtue of section 2 of the 1971 Immigration Act
      • has no indefinite leave to enter or remain in the UK, or
      • to whom section 8 of the 1971 Immigration Act or any order made under subsection (2) do not apply.

Section 15A (8) of the 2006 Regulation confirms that a person solely providing financial support cannot be defined as a primary carer. They must also have day to day caring responsibilities.

Before the EU Settlement Scheme Zambrano carers did not have a route to settlement in the UK. However, according to the guidance on ‘derivative rights of residence’ potential Zambrano applicants must first make a human rights application under British immigration law before relying on EU law rights.

According to the guidance Zambrano applications will be refused if the applicant:

  • has never made an application under Appendix FM of the Immigration Rules or any other Article 8 ECHR (European Court of Human Rights) claim, where that avenue is available, or
  • has been refused under Appendix FM or Article 8 ECHR but their circumstances have changed since the decision was made.

Applicants who chose the Zambrano route because they could not afford the Home Office fee will need to consider applying for a fee waiver.

The rules for the settlement scheme also say that Zambrano carers are only eligible to apply for settled status if “they do not have leave to enter or remain in the UK granted under another part of the rules”.

This means Zambrano carers who do not already have a residence card confirming their derivative right of residence will not be able to obtain settled status.

Migrate UK has extensive experience in this area of immigration law. If you are a non-EEA citizen who is the primary carer of a British citizen and you are looking for a route to settlement in the UK, please contact us on 01235 841 568 or email info@migrate-uk.com

Zambrano carers

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