On 2 May 2019, the Home Office published updated guidance on “derivative rights of residence”, which includes the rights of Zambrano carers. Buried in the 63-page document is a fundamental change of policy: potential Zambrano applicants must first make a human rights application under British immigration law. In other words, applicants no longer have a choice between using Zambrano or using the UK Immigration Rules; they must do the latter first if eligible, or will have their Zambrano applications refused.

Zambrano rights of residence

Following the landmark Zambrano judgment, 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.

In the case of Patel v Secretary of State for the Home Department [2017] EWCA Civ 2028, which we covered shortly after the judgment was published, the Court of Appeal confirmed that Zambrano applicants need to show that their British family member would be compelled to leave. Although I concluded my post by saying “the main lesson to take from Patel is that, wherever possible, applicants might be well advised to argue their case on a different basis than Zambrano”, I was not expecting the Home Office to force applicants to make an application on a different basis than Zambrano.

But the department has zeroed in on paragraph 76 of the Patel judgment, which says that:

The Zambrano principle cannot be regarded as a back-door route to residence by such non-EU citizen parents.

And changed its guidance to say that a Zambrano application must be refused if the applicant:

– has never made an application under Appendix FM to the Immigration Rules or any other Article 8 ECHR claim, where that avenue is available

– has been refused under Appendix FM or Article 8 ECHR but their circumstances have changed since the decision was made – for example, the applicant applied on the basis of their relationship with a British spouse, but the couple now have a British child

It goes on to say:

Applicants being refused because it is open to them to apply under Appendix FM to the Immigration Rules should be directed to the information available at www.gov.uk/uk-family-visa.

If an applicant has made an application under Appendix FM to the Immigration Rules or any other Article 8 ECHR claim, and they were refused and exhausted their appeal rights recently, you must consider whether a derivative right of residence exists following the caseworking steps outlined in this guidance.

In addition, the part of the guidance about assessing whether a primary carer already has leave to remain in the UK states:

You must consider whether the applicant either already has leave to enter or remain in the UK, or if they could make an alternative application for leave to remain in the UK.

If alternative leave to enter or remain is held, or other avenues for leave are available, the British citizen would not be forced to leave the UK, and the EEA. The application for a derivative residence card must therefore be refused.

What does this mean in practice?

We may see litigation as to the lawfulness of this new policy. In the meantime, however, immigration practitioners and potential applicants must change their practice.

It used to be the case that you could assess the pros and cons of making a Zambrano application under EU law and a human rights application. Some of the relevant factors included the price of the application (£65 for an EEA application versus £2,000+ for an application under the Immigration Rules); and the ability to get indefinite leave to remain (Zambrano did not lead to settlement). We can forget about making these considerations; if an applicant can apply under the Immigration Rules, they must do so.

It is also difficult to see scenarios where you could not apply under human rights laws. After all, even if an applicant does not meet the Immigration Rules, if they are the carer of a British citizen their removal from the UK would violate their Article 8 rights and it will be open to them to make an application outside the Rules on that basis. The Home Office guidance suggests this is what they should do, referring to “an application under Appendix FM to the Immigration Rules or any other Article 8 ECHR claim”.

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

Why the change?

It is difficult not to be cynical about the reasoning behind this change. For one thing, the Home Office will, very simply, make a lot more money.

Another possible reason is to prevent Zambrano applicants from making use of the EU Settlement Scheme, which is free and fairly permissive. On the face of it, the Settlement Scheme allows Zambrano carers to apply for settled status after five years’ residence in the UK (or pre-settled status if they don’t have five years). This was, we thought, an improvement on the current situation, where the Zambrano route does not lead to settlement.

But I think that a potential Zambrano applicant trying to use the Settlement Scheme would be told to make an Appendix FM or other Article 8 application first. The guidance says:

A derivative right to reside is only available to an applicant who has no other means to remain lawfully in the UK as the primary carer of a dependent British citizen, or a dependent of that primary carer.

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”.

So the Home Office is effectively closing the door to settled status to all those would-be Zambrano carers who do not already have a residence card confirming their derivative right to reside.

We were, incidentally, expecting the Home Office to publish guidance specifically on Zambrano applications under the Settlement Scheme. The general caseworker guidance for the scheme says:

Further guidance on applying as a person with a Zambrano right to reside will be published on 1 May 2019.

But no guidance has appeared. When we contacted the Settlement Scheme helpline on 9 May to ask about it, they said that this wording was misleading and that there would be no document issued. The reference to “guidance” just means that when a potential Zambrano applicant contacts the helpline to request a copy of the paper application form that they have to use, which became available from 1 May, they will be given guidance over the phone about how to apply.