Settlement for Zambrano parents

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.
23 December 2020

We acted for two non-EU nationals who came to the UK in 2003 and had a child born in the UK in 2004. The family remained living in the UK without permission to remain.  In 2014 we made an application to register the child as a British citizen, having been born in the UK and having resided here for at least 10 years.  The application was successful.

In 2015 we submitted a first application for the couple to the Home Office to be granted derivative residence cards under Zambrano, which was valid from October 2015 to October 2020.  We thereafter applied for settlement which was successful last week!

We submitted that the couple qualified for settlement as set out under Condition 3 under Appendix EU 11, which states that an applicant will be eligible for Indefinite Leave to Remain as a person with a derivative right of residence or as a person with a Zambrano right to reside.  This person has to reside in the UK with the Zambrano right to reside for a continuous qualifying period of five years.  Given that the couple had joint care of their child with no supervening events, the application for settlement was successful.

We argued that to deprive the parents of Settled Status would be depriving an EU child of their genuine enjoyment of the substance of the EU Citizenship rights by forcing the parents to leave the EA area.  We also referred to section 55 of the Borders Citizenship and Immigration Act 2009, which deals with the best interests of the child.

On a personal note, I am delighted to finish this difficult year with such a success. A Zambrano judgement is an important landmark in the area of EU citizenship now that the EU Settlement Scheme has opened the door for existing Zambrano applicants to settle in the UK in light of Brexit.  Previously, a derivative residence under this route did not lead to permanent residence under EU law and so this judgement is wonderful news for people recognised as Zambrano carers, enabling them to settle permanently in the UK.

The Home Office have updated their guidance with regard to Zambrano applications several times this year, stipulating that Zambrano parents must first attempt a human rights application under the UK Immigration Rules first. This is known as Appendix FM or Ex.1 application, available to parents of British children.   The new guidance states that if an alternative visa is held under UK Immigration law, the Zambrano route is not available, meaning is it impossible to switch to a Zambrano from any other existing UK visa.  It also greatly reduces the prospects of a new Zambrano applicant parent securing Settled Status in the future, as they will likely be required to be required to complete 10 years residence under the Immigration Rules.

However, given that the child’s parents in this case were in a relationship together, they were excluded from making an application under Appendix FM and therefore the application was successful.

It is important to try and obtain professional advice as to whether you can qualify for Settlement under the Zambrano route, with a significant difference in expense between the different routes. If you make an application under the Immigration Rules, your leave is only valid for two and a half years.  On the other hand, the initial application fee under the Zambrano route is minimal (£65) and if the applicant then settles under the EU Settlement Scheme, the settlement application is free.