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Zambrano applications must be based on facts, not assumptions, says Court of Appeal
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In the case of Velaj v Secretary of State for the Home Department  EWCA Civ 767, the Court of Appeal has confirmed that Zambrano applications always require factual inquiries as to what would happen to the British dependant if their primary carer(s) indeed left the UK. In the case of joint primary carers, it must be shown — rather than assumed — that both carers would leave the country.
The Upper Tribunal gave judgment on Mr Velaj’s appeal last year, and Iain’s post sets out the background, facts and law in detail, so I won’t repeat them here.
In summary, Mr Velaj was the joint primary carer of his British citizen children, together with his British citizen wife. His wife was clear that, if Mr Velaj were to leave the UK, she would stay behind with the children. Mr Velaj tried to argue that this shouldn’t matter: a literal interpretation of the EEA Regulations 2016 required the Home Office to assume that both he and his wife would leave the UK, rather than investigate whether that would be the reality. That would allow him to remain in the UK as a Zambrano carer.
The Court of Appeal disagreed. In the words of Lady Justice Andrews:
The focus is on whether the British Citizen dependant would be “unable” to remain in the UK “if” something happens – i.e. on what will happen to the child if the primary carer leaves (or both primary carers leave). In that context the word “if” requires the decision maker to consider the position of the child on the basis that something is (actually) going to happen. It does not require that premise to be purely hypothetical, let alone counterfactual. Given that the person asking themselves the question has to decide what in practice would happen to the child if that event occurred, it would make little sense to require them to make an assumption that the event will happen if it plainly will not…
“If the person left the UK for an indefinite period” could either mean “in the event that the person [in fact] left the UK for an indefinite period” or “on the hypothesis that the person will leave the UK for an indefinite period (regardless of whether in fact he would do so)”. The former seems to me to be the more natural interpretation, and carries with it the necessary implication that the postulated event (here, leaving the UK) is realistic, and not just theoretical. At the risk of stating the obvious, a purely hypothetical event could have no impact, in practice, on the ability of the child or other British Citizen dependant to remain in the UK. [Paragraphs 47 and 48]
It therefore dismissed Mr Velaj’s appeal.
What does this mean in practice?
Of course, the EEA Regulations no longer apply in the UK post-Brexit, so you might wonder why any of this is relevant. The answer is that some Zambrano carers, who met the EEA Regulations by 31 December 2020, might still be able to apply for permission to stay under the EU Settlement Scheme. The way those Regulations are interpreted still matters.
On that note: the Home Office is due to publish its review of the EUSS Zambrano rules imminently, following on from the decision in Akinsanya v Secretary of State for the Home Department  EWCA Civ 37. As the review is due out by 13 June, people who haven’t submitted an application yet would probably be wise to wait for that before making a decision as to whether it is worthwhile. Similarly, anyone who has a pending application might want to see that review before deciding whether they should submit further evidence or representations.
For joint carers more specifically, Velaj is not the end of the road. They might still be able to meet the definition of “Zambrano carer”, so long as they can show that both the applicant and their partner would indeed leave the UK, such that their dependant would also have to leave.