Zambrano carers after Brexit

Danielle Cohen
By Danielle Cohen Immigration Law Solicitor Linkedin
Danielle Cohen has over 20 years of experience as a lawyer and a reputation for offering professional, honest and expert advice.
26 September 2021

1.High Court Ruling in Akinsanya – Background

On 9th June 2021 the High Court handed down a judgement in the case of R (Akinsanya) v SSHD [2021].  Ms Akinsanya has been issued with a derivative residence card as a Zambrano carer on the basis that she was a third country national and the primary carer of her British child.  When she needed to claim Benefits she was unable to do so because as a Zambrano carer she was not eligible for such support.  She was asked to make an application under Appendix FM which would have enabled her to claim Benefits and she was granted 30 months limited leave to remain.  Later she applied through the EU Settlement Scheme for indefinite leave to remain as she was a Zambrano carer with five years. The Secretary of State argued that she did not meet the definition of a Zambrano carer because she already had limited leave to remain under the Immigration Rules.  Because she had limited leave to remain, her child would not be compelled to leave the UK as she had permission to remain, defeating the Zambrano principle of allowing a parent to remain in the UK.  She challenged this decision by way of Judicial Review.

2.The High Court Judgement!

The Court found that the definition of a Zambrano carer is in Appendix EU, the part of the Immigration Rules that govern the EU Settlement Scheme was wrong and that the Home Office guidance documents in 2019 and 2021 were also wrong.  The mistake was that they excluded those who had limited leave to remain in the UK from meeting the definition of a Zambrano carer. The Court looked back at the original Zambrano judgement of 2011 and Mostyn J observed that the residence rights of a Zambrano carer are different to and exceed the rights of a person with limited leave to remain.  Therefore, having limited leave to remain does not preclude an individual from meeting the definition of a Zambrano carer.

The battle is not over as the Secretary of State applied to the Court of Appeal for permission to challenge this very same decision of the High Court.  

3. The Consent Order

However, in the meantime, a Consent Order has been made, stating that the Secretary of State will make a Zambrano reconsideration of Appendix EU to the Immigration Rules and also will continue to accept Zambrano carers for EU Settlement Scheme applications made after 1st July 2021 for a specified period.  The Home Office has suspended decisions on Zambrano EU Settlement Scheme applications that will be affected by this judgement and no decisions will be made until reconsideration of Appendix EU is complete.  Therefore, no refusals will be issued before that time.

The Consent Order also states that those who have applied before 30th June 2021 will be issued with a Certificate of Application confirming their entitlement to work, study and rent until the final determination of the Zambrano application.  The Consent Order states that the Zambrano carers can have both EU Settlement Scheme and Appendix FM applications running concurrently as long as those applications are based on the same circumstances. If you have limited leave to remain which expires after 30th June 2021 you have a right to make a late application under the EU Settlement Scheme at any time before the limited leave expires.  Those who did not make an application before 30th June and do not have leave to remain in any capacity can still make an application under Appendix EU in light of this judgement.