Zambrano carers do not have to apply under Immigration Rules before applying under Zambrano says the high court in a landmark judgment of R (Akinsanya) v Secretary of State for the Home Department [2021] EWHC 1535 (Admin).
This landmark judgement of Zambrano came in 2011. Following the judgement, a primary carer of a British citizen living in the UK could acquire a derivative right of residence under EU law if their removal from the UK would mean the British citizen will also be compelled to leave the European Union. This benefitted, for example, single mothers from non-EU countries with a British child or children.
Zambrano carers are covered under the EU settlement scheme and could obtain settled status if they continue this status for five years.
Unfortunately, after the court of appeal judgement of Nilay Patel Home Office produced new guidance which only allowed applicants to make an application under the derivative right category if they did not have a right to remain in the UK under the Immigration Rules.
Following on from the above, applicants could only apply under the EU Settlement Scheme if they did not have a right to remain or enter in the UK or already had existing leave under the derivative right of residence.
Effect of R (Akinsanya) v Secretary of State for the Home Department [2021] EWHC 1535 (Admin)
Parents of a British child:
This judgement could have wider implication. For example, parents of British children who are on a limited leave to remain (usually 10-year route) should be able to apply under this route and reduce the time frame to settle in the UK from 10-years to 5-years. In addition, this category does not have any fee and there is automatic recourse to public funds (if needed).
Single parent/Parent with shared responsibility:
Single parents should also be able to apply under this category. In addition, a parent who has access/contact arrangements and has shared responsibility of a British child with the other parent should also be able to apply under this category.
As you can see from the above the implications of this decision could be significant.
