The route for Zambrano carers under the EU Settlement Scheme will close on 8 August 2023.
Who are Zambrano carers?
When the UK was a member of the EU, a non-EU citizen who was the primary carer of a British citizen (usually a child) had a right to reside in the UK if that child would be unable to live in the UK without them.
These carers were known as ‘Zambrano carers’ and had what is known as a ‘derivative right to reside’ in the UK under EU law. The name ‘Zambrano carers’ comes from the case of C-34/09 Zambrano in the Court of Justice of the European Union.
The Zambrano right to reside was incorporated into domestic legislation in Regulation 16 of the Immigration (European Economic Area) Regulations 2016.
Applications under the EU Settlement Scheme
As Zambrano rights were somewhat limited, many Zambrano carers applied for permission to stay under UK domestic law instead of EU law – for example, as the parent of a British child.
When the UK left the EU and the EU Settlement Scheme was introduced, Zambrano carers were allowed to apply – giving many the chance to settle in the UK quicker with no application fee. Those who had been caring for a British child for less than 5 years could potentially apply for pre-settled status, and those caring for a British child for more than 5 years could potentially apply for settled status.
However, Zambrano carers were only allowed to apply under the EU Settlement Scheme where they had not already switched into a UK domestic law route.
This position was challenged in the case of Akinsanya. The cases of Zambrano carers under the EU Settlement Scheme were placed on hold pending the outcome of this case. The Court of Appeal in Akinsanya [2022] EWCA Civ 37 held the Home Secretary had misunderstood domestic law but did not rule that there had been any breach of EU law. The Government had to look again at the Immigration Rules with regard to Zambrano carers and commenced a review.
What is at stake?
Simply put, the EU Settlement Scheme provides a faster and cheaper route to settlement in the UK.
Limited leave to remain is generally subject to a ‘no recourse to public funds’ condition which means that carers cannot access welfare benefits until they settle in the UK. Carers with limited leave to remain also need to make expensive applications to renew their status every 30 months. Under domestic rules, many carers are on a 10-year route to Indefinite Leave to Remain because they cannot meet the financial requirement to qualify under the 5-year route. There are more renewal applications and therefore higher fees over a 10-year period than over a 5-year period.
By contrast, it is free to apply under the EU Settlement Scheme and it provides a five-year route to settlement.
Government review post-Akinsanya
In June 2022, the Government announced that it had concluded its review of Zambrano carers under the EU Settlement Scheme and confirmed its position that anyone who had limited leave could not qualify for a Zambrano right to reside.
This meant that anyone who had limited leave under domestic UK law on 31 December 2020 (unless they already had pre-settled status under the EU Settlement Scheme) would not be eligible under the EU Settlement Scheme Zambrano route. It also meant that anyone who later obtained limited leave under domestic UK law could not use time spent under that route towards their 5 years’ residence to qualify for settled status under the EU Settlement Scheme.
The Government accepted that Zambrano carers without limited leave could potentially apply under the Zambrano route and the fact that an applicant may qualify under a UK domestic route did not disqualify them from applying under the EU Settlement Scheme.
Over the next year, the Government went on to make a serious of announcements and changes to the guidance for Zambrano carers.
On 14 December 2022, the Home Office policy guidance was updated to confirm that where a carer could make an application for limited leave under domestic law (for example, as the parent of a British child), they would generally not qualify under the Zambrano route and set out the factors they would take into consideration.
Deadline to apply: 8 August 2023
Most recently, on 17 July 2023 the Home Office confirmed the following changes:
(1) The EU Settlement Scheme Zambrano route will close to new applications from 8 August 2023 – this means that 8 August 2023 is the last day for a new Zambrano application.
(2) An application made on or after 9 August 2023 will be rejected without consideration.
(3) After 9 August, the Zambrano route will stay open for:
- Carers who are upgrading their pre-settled status to settled status
- Carers who already made an application before the deadline of 8 August and their case has not yet been decided
- Carers who made a Zambrano application before the deadline of 8 August and they are challenging a refusal through administrative review or appeal
What does this mean for me?
If you have a pending application, you may wish to seek advice about how your application will be impacted by the new guidance and explore alternative routes.
If you have not yet made an application but you think you may be eligible to apply as a Zambrano carer, you must apply before 8 August 2023. New applications will not be accepted after 8 August 2023.