Is ‘Zambrano’ still causing headaches for the Home Office?

Md Tariq Bin Aziz

25 June 2021

In 2011 the European Court of Justice (ECJ), decided the case of Gerardo Ruiz Zambrano v Office national de l’emploi (ONEm) C-34/0, which gave rise to the ‘Zambrano Principle’ or the ‘Zambrano Right to Reside’.

Since then, Zambrano is a route available under EU law. It can be used by the primary carer of a British citizen child, where the child would be compelled to leave the UK if the primary carer leaves. A successful ‘Zambrano’ application will result in a grant of a derivative right to reside under EU law.

In light of Brexit, the Home Office introduced a requirement that an applicant under the Zambranoroute must have attempted a Human Rights application under the UK Immigration Rules first by way of Appendix FM or EX.1 application. If an alternative visa is held under UK immigration law, the Zambrano route is not available. This new requirement made it impossible to switch to a Zambranovisa and reduces the prospects of a new Zambrano applicant parent securing Settled Status in the future creating extra hardship, in practice, which required to pay thousands of pounds in Home Office application fees, Immigration Health Surcharge fees and Legal fees. On the other hand, the initial application fee under the Zambrano route was £65 and the settlement under the EU Settlement Scheme is free.

However, the question ‘whether the existence of a limited leave to remain of itself acts to extinguish a ‘Zambrano’ claim?’ remains unanswered until the outcome in The Queen on the application of Olorunfunmilayo Oluwaseun Akinsanya [2021] EWHC 1535 (Admin). This case shows that a person with an existing leave to remain can benefit from Zambrano. Until the case of Akinsanyathe fact that if someone had permission to remain as a parent under Appendix FM meant that (s)/he was unable to qualify for status as a Zambrano carer under the EU Settlement Scheme.

Mostyn J held that:

“49. … The Zambrano principle is simple and clear. An EU citizen, who happens to be a small child, is entitled to enjoy the full benefits of EU citizenship, of which the principal one is living in EU territory. If her primary carer were to be expelled from EU territory, and if in the real world the EU citizen would have to accompany the carer, then the EU citizen is denied the benefits of her citizenship. Therefore, her carer has to be granted residence in the relevant EU state. True, that grant of residence is derivative and is not obtained by passing through the front door. Therefore, it is a route to residence via the back door, although to describe it in such pejorative terms perhaps risks missing the true point.

50. My conclusion is that nothing decided in the CJEU or domestically since the decision in Zambrano supports the theory that the existence of a concurrent limited leave to remain of itself automatically extinguishes a claim for Zambrano residence. On the contrary, it is clear to me from the facts of Zambrano itself that the CJEU tacitly acknowledged that a limited national leave to remain, and a wider Zambrano right to remain, in many cases can and will coexist.”

However, an existing leave to remain holder may apply both a pre-settled/ settled status application and an extension application, if required, to keep his/her existing rights (including benefits).

If the Court of Appeal decides in favour of Akinsanya principle and Home Office changes the Appendix EU rules favourably, Zambrano rights holder then become eligible to apply for the full EU settled status.

A great dose of political will and courage can relieve both the Court and Home Office from the anxiety of “Zambrano” and “its public importance”. Otherwise, “crisis” will predominantly continue.

Md Tariq Bin Aziz

Md Tariq Bin Aziz

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