Latest on Zambrano carers and the EU Settlement Scheme

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On 9 June, in the case of Akinsanya, the High Court found that the definition of Zambrano carers in the rules for the EU Settlement Scheme was wrong, insofar as it prevented those with permission to remain under another part of the Immigration Rules from applying.

With the deadline to apply under the EU Settlement Scheme around the corner, on 30 June 2021, potential Zambrano carers are in a difficult position. Ms Akinsanya did ask the High Court to order an extension to the deadline so that people affected by this ruling have more time to work out what to do. The result is a consent order, dated 17 June, in which the Home Office has agreed to accept Zambrano applications after the usual deadline. But in many cases it will still be best to submit an application before 30 June if possible.

What does the consent order say?

The full consent order can be found at the end of the judgement here and we reproduce it in full below. Here’s the gist of what the order says:

1. The Home Office will reconsider Appendix EU as it applies to Zambrano carers. Until such time as it has reconsidered the rules (which it is unlikely to do until they have a decision by the Court of Appeal on their application for permission to appeal), the Home Office will pause decision-making on all Zambrano applications.

2. A Zambrano application under Appendix FM made on the same grounds as a Zambrano application under the EU Settlement Scheme will not vary the EUSS application, and vice versa. This was important to clarify because an applicant can’t usually have two immigration applications on the go at the same time.

Normally, when an applicant has an application pending under one part of the Rules, and then submits a second application under another part of the Rules, that second application “varies” the first one, meaning that the first one is “cancelled” and only the second one gets decided. The order has now confirmed that this general rule does not apply to Zambrano and Appendix FM applications, as long as they are “based on the same circumstances”.

3. The Home Office will confirm when it has reconsidered the Zambrano EUSS rules. It will then need to publish a policy confirming that all Zambrano applications submitted after that date, and for a period of at least six weeks beyond that, will be deemed to have been submitted “on time” for the purpose of Appendix EU. In other words, it will be possible to submit an application after 30 June 2021.

However, this does not mean that there is no deadline. The deadline is still 30 June 2021. For many applicants, including those who do not currently have any permission to be in the UK, it is still important to try to submit an application before 30 June — including so that they can work in the UK.

4. If someone without immigration status in the UK is “picked up” by the Home Office during those six weeks, and they are eligible for Zambrano status, then the Home Office should give them an opportunity to make an application within 28 days (and put that in writing).

5. Those who apply before 30 June 2021 will be issued with a certificate of application confirming their entitlement to work, study and rent in the UK until a decision is made on their Zambrano application. The Home Office hasn’t made a decision about those who apply after 30 June 2021 — and that is another reason why it is still a good idea to apply before the deadline.

I need more information

More details and tips can be found in this very helpful post by Hackney Community Law Centre, who were instructed on this case.

Full text of the consent order in Akinsanya

UPON the Court having given judgment on 9 June 2021 allowing the Claimant’s claim for judicial review;

AND UPON the Court having adjourned the Claimant’s application for further quashing relief and a hearing being listed to determine the application on 17 June 2021;

AND UPON the Claimant’s application for an order for further relief as set out in her skeleton argument dated 16 June 2021;

AND UPON the Secretary of State confirming that:

a. The Secretary of State is to reconsider the relevant provisions of Appendix EU of the Immigration Rules (“Appendix EU”);

b. The Secretary of State will not determine applications made under Appendix EU on the basis that the applicant is or was a person with a Zambrano right to reside (‘Zambrano application’) and is affected by the Court’s judgment, until after she has completed her reconsideration of Appendix EU;

c. In paragraph (a)(v) of the definition of ‘required date’ in Annex 1 to Appendix EU the reference to “limited leave to enter or remain granted under another part of these Rules or outside the Immigration Rules which has not lapsed or been cancelled, curtailed or invalidated” includes leave to enter or remain granted under another part of these Rules or outside the Immigration Rules which is extended by operation of section 3C of the Immigration Act 1971;

d. To the extent that paragraph 34BB of the Immigration Rules applies to a Zambrano application, it will be disregarded where there is (i) an outstanding valid Zambrano application for leave to remain under Appendix EU and a valid application for leave to remain is subsequently made under Appendix FM based on the same circumstances; and (ii) an outstanding valid application for leave to remain under Appendix FM and a valid Zambrano application for leave to remain is subsequently made under Appendix EU based on the same circumstances as the Appendix FM application;

e. The Secretary of State intends to implement and publicise a policy under which, for a reasonable period of time which she will specify, but which will be for a period of not less than six weeks after publication of the outcome of her reconsideration referred to at a. above, Zambrano applications made on or after 1 July 2021 will be deemed, under the definition of ‘required date’ in Annex 1 to Appendix EU, to have reasonable grounds for the person’s failure to make that application at the earlier date relevant under that definition;

f. In accordance with paragraph (c) of the definition of “EEA Regulations” in Annex 1 of Appendix EU, the question of whether an applicant is a person with a Zambrano right to reside as defined in Appendix EU in respect of a period on or after 1 July 2021 is to be determined on the basis of the Immigration (European Economic Area) Regulations 2016 as they had effect immediately before they were revoked, and, where the context requires it, on the basis that they had not been revoked;

g. Where a valid Zambrano application is made on or before 30 June 2021, the Secretary of State provides the applicant with a certificate of application confirming their entitlement to work, study and rent a place to live, until final determination of their Zambrano application;

h. The Secretary of State is considering the position in relation to the issue of similar certificates for applications made under Appendix EU on or after 1 July 2021, including in relation to Zambrano applications;

i. Before expiry of the period referred to in e., above, where persons are encountered by Immigration Enforcement on or after 1 July 2021 who may be eligible for leave as potential Zambrano applicants under Appendix EU in light of the judgment, such persons will be provided with written notice giving them an opportunity to make a valid application under Appendix EU, normally within 28 days of the date of the written notice.

IT IS ORDERED BY CONSENT THAT:

1. The Claimant’s application for further relief as set out in her skeleton argument dated 16 June 2021 is withdrawn.

2. The hearing listed for 17 June 2021 is vacated.

3. The Claimant’s application for further quashing relief is stayed pending determination of the Defendant’s application to the Court of Appeal for permission to appeal and, if permission to appeal is granted, determination of that appeal.

4. There shall be no order as to costs, save that there be a detailed assessment of the Claimant’s costs for the purposes of public funding.

5. This order and the order of 9 June 2021 shall be appended to the judgment dated 9 June 2021 which shall be republished on the Bailii website.

Dated this 17^th day of June 2021