Those who have children in the UK may be able to apply to stay in the UK
The case of Ruiz Zambrano v. Office national de L’Emploi Case C-34/09 shook up immigration policy across the entire of the EU and prompted a change to the Home Office’s policy back in 2012. In the case of Zambrano, it was held that a country within the European Economic Area could not refuse a person the right to live or work in the country if the following conditions are met:
- The person applying to live and work in the country is the primary carer or a joint primary carer of a person living in the country in question, if the person being cared for is a citizen of the country, and
- The citizen would be forced to leave the EEA if their carer or carers had to leave the country.
This meant that non-EEA citizens who could prove that they are the sole or joint primary carer of a British citizen would be able to apply under EU law to remain in the UK, even if the British citizen has never lived or worked in another EEA country.
This had been the status quo for seven years, although not without its challenges from the Home Office. Many such cases were initially refused by the Home Office before being allowed by the Courts; demonstrating the Home Office’s seeming reluctance to grant leave under the Zambrano route.
The linked cases of Patel & Shah v. SSHD [2017] EWCA Civ 2028 then came along. In these linked cases, the Court of Appeal had ruled that the choices of an applicant’s family members should be taken into consideration when deciding if the EEA citizen would be compelled to leave. More specifically, in the case of Patel, the Appellant’s British parents, whom the Appellant cared for, would choose to remain in the UK even if the Appellant had to leave; and in Shah, the British wife of the Appellant (who was the primary carer of their British children) would leave with him, meaning the British children would also need to leave. The Court of Appeal ruled in the case of Shah that the wife’s choice to leave meant that their British children would not be compelled to leave. This spawned the Home Office policy of 2 May 2019 entitled Free Movement Rights: Derivative Rights of Residence (version 5.0) seemingly undermining the Zambrano route to remain in the UK. The Home Office’s view was that the Zambrano route is a last resort, and unless all other routes to remain in the UK have been exhausted first, Zambrano could not be successful, as a person could not prove that the citizen would be forced to leave if refused under Zambrano, as the carer could apply for leave to remain under a different route instead.
However, we believe that the Home Office’s policy is wrong. Amongst other things, an application for leave to remain under the family life route costs more than £1,000 for the Home Office fee and requires an additional £1,000 payment of Immigration Health Surcharge. The Applicant would also have to pay solicitor’s fees in addition to this. In comparison, the application fee for a Zambrano application is only £65.
We represent a group of Appellants whose cases were heard together in the First-Tier Tribunal on 13 December 2019 before First-Tier Tribunal Judge Neville, who reserved his judgment. In our linked cases, the Home Office’s position was tested and it was argued that the policy is unlawful and incompatible with EU law. First-Tier Tribunal Judge Neville, in his determination on the preliminary issue dated 30 January 2020, agreed with our position that one should not have to apply under Article 8 first, for a subsequent Zambrano application to be successful.
The Supreme Court has also now ruled in the cases of Patel & Shah that the key is whether the EEA citizen, if a child would be compelled to leave, taking into consideration the best interest of the citizen and considering the facts of each case pragmatically. Carers of adult dependant relatives would only be granted in exceptional circumstances. It therefore seems that the blanket approach that the Home Office implement in their 2 May 2019 policy may not be appropriate.
Will the Home Office now change their policy? We believe that they will, but only time will tell.
So, how may this affect you?
If you are entitled to apply for an EU residence card because you have a British or European relative that you care for, you may have been advised not to, because of the Home Office’s change in policy in May 2019. However, it may now be appropriate to consider applying under EU law once more.
If you already have such a residence card, you may have been refused an extension; however, this decision may be reversed if Home Office change their policy.
Additionally, the EU Settlement Scheme, which opened early last year, suggests that EEA nationals already under Zambrano route may be able to apply for indefinite leave to remain, which was previously unavailable to those on the Zambrano route and other derivative right routes. Could this be the solution that all Zambrano carers have been waiting for?
If you have already completed 5 years and had previously been advised that you would need to complete 10 years lawful residence to apply for indefinite leave to remain, you may now be able to apply for indefinite leave to remain.
Those who are illegally present in the UK and have a non-British child living here continuously for more than 7 years may be able to apply to stay in the UK under the family life route.
If you wish to make an EU application, or simply want to explore your options, you may wish to seek independent legal advice.
