Zambrano Right to Reside Application Update 2022

The Zambrano right to reside means that a person has the right to apply for pre-settled status or settled status (i.e. permanent residence) through the EU Settlement Scheme (EUSS) as a Zambrano carer. Primary carers in this situation did not originally have the right under EU law to gain permanent residency in the UK, however, they were included in the EU Settlement Scheme (EUSS) rules as a more “generous provision” by the UK from 13^th June 2022.

Zambrano's primary carers are immediate relatives or legal guardians with the right to reside in the UK under the EU Settlement Scheme (EUSS) as the primary carer of a British citizen. To qualify, it must be shown that the British citizen would have been unable to live in the UK if the primary carer’s application had been refused.

Please note: the deadline for Zambrano right to reside application is 25th July 2022.

Zambrano case update 2022 UK

The new Zambrano EU Settlement Scheme guidance was issued by the Home Office on 13^th June 2022¹ following the Court of Appeal’s judgment in the case of Akinsanya² in January 2022. In that case, the Court of Appeal concluded:

• The Home Office made a mistake when interpreting the rules relating to ‘a person with a Zambrano right to reside’ in the EUSS rules, and
• A person does not have a Zambrano right to reside if a carer has leave to remain under a different immigration route.

On the basis of the Court’s decision, the Home Secretary reviewed the EUSS rules for Zambrano primary carers and decided to keep the rules as they are. This means that a person will only have the right to reside in the UK as a Zambrano primary carer if they did not hold leave to enter or leave to remain in the UK under a different immigration route. Individuals who held leave under another route will need to consider making an application under a different immigration pathway, such as the family visa.

The new guidance also confirmed that the deadline for applications to the EUSS as a ‘person with a Zambrano right to reside’ was extended to 25^th July 2022. Those who wish to apply or re-apply to the EUSS and have missed the new deadline will need to prove they have additional reasons for doing so. Alternatively, those who do not have additional valid reasons for missing the deadline can consider applying for another visa type (e.g., parent visa under the family visa route) where they meet the eligibility criteria. If you are unsure if you have sufficient additional reasons to make a late EUSS application as a ‘person with a Zambrano right to reside’ or the other visa options available to you, speak to an immigration Solicitor who will be able to confirm this for you.

Zambrano right to reside application requirements

To meet the requirements for Zambrano right to reside, applicants must meet the below requirements:

• They have been a primary carer for a British citizen as their direct relative or legal guardian
• The British citizen would be unable to live in the UK, the EEA, or Switzerland if the applicant had to leave the UK for an indefinite period
• They have lived continuously in the UK for a continuous qualifying period of 5 years (if applying for settled status) or less than 5 years (if applying for pre-settled status) – this period of residence in the UK must have begun before 2300 GMT on 31^st December 2020.
• They are not an ‘exempt person’
• They have not been granted leave to enter or remain under another visa category

Who are direct relatives?

Direct relatives include any of the following of a British Citizen:

• parent
• grandparent
• brother or sister
• spouse or civil partner
• child
• grandchild

British citizen unable to live / reside in the UK, EEA, or Switzerland

To make a successful EUSS application as a Zambrano carer, it must be shown that the British citizen they were caring for would be unable to reside in the UK, the EEA, or Switzerland if their application was refused. This depends on a range of factors, including:

• Whether the person could live in an EEA member state or Switzerland
• Whether alternative care arrangements could be put in place, which would mean the British citizen could be cared for by another person in the UK – i.e., by their other parent, another direct relative, or a legal guardian.

Exempt persons

Exempt persons include:

• Those exercising free movement rights as an EEA citizen
• Citizens of the UK and Colonies (cukcs) and Commonwealth citizens with the right of abode in the UK, and
• Those with indefinite leave to enter or remain in the UK

Zambrano carer’s dependants

Under the immigration rules, it is possible for a dependant of a Zambrano carer to gain the right to reside in the UK. To make a successful application as a Zambrano carer’s dependant, it must be shown that:

• the applicant is under the age of 18
• the applicant is a child of a primary carer with a Zambrano right to reside (i.e., the child has a derivative right to reside in the UK)
• the primary carer would be unable to reside in the UK if the dependant child applicant left the UK for an indefinite period.

How can Reiss Edwards help?

The rules around the right to reside for Zambrano carers are legally complex. Reiss Edwards specialises in all aspects of immigration law, including Zambrano right to reside applications. Our immigration solicitor can:

• Check if you have the right to reside as a Zambrano carer after Brexit
• Help you with your EUSS application as a Zambrano primary carer
• Advise on any other immigration routes available to you.

For assistance with Zambrano right to reside as a primary carer of a British citizen, please speak to our immigration lawyers for a free telephone consultation on 020 3744 2797 or complete our enquiry form.

References:

¹ GOV.UK: EU Settlement Scheme: Zambrano primary carers

²British and Irish Legal Information Institute