Since 1st May 2019, Zambrano carers - a person from a non EEA state whose residence is required in order to enable a British child or adult dependant to live in the UK – can now apply under the EU Settlement Scheme.
Appendix EU of the Immigration Rules EU 11 states;
“The applicant meets the eligibility requirements for indefinite leave to enter or remain as a relevant EEA citizen or their family member (or as a person with a derivative right to reside or a person with a Zambrano right to reside) where the Secretary of State is satisfied, including (where applicable) by the required evidence of family relationship, that, at the date of application, one of conditions 1 to 7 set out in the following table is met:
The applicant is:
If the applicant has completed the five year route as a Zambrano carer they are eligible to apply for settled status under the EU scheme. Evidence would need to be submitted in support of the application to demonstrate that they have met the Zambrano requirements for the entirety of the five years.
When a person has acted as the primary carer of a British child for five years continuously and has never had any leave to remain they can still make an argument for settled status straight away as EU residence rights arise automatically. This also counts for those who have been undocumented Zambrano carers although their applications are highly likely to be heavily scrutinised.
It is advisable that those looking to submit applications without having any prior leave to remain will need to provide very detailed submissions and evidence to support why they should be eligible for settlement. The situation is slightly more complicated for those who have a British child who is aged five years who have had leave to remain under Appendix FM. The EU Settlement Scheme’s definition of someone with a Zambrano right to reside is a person without leave to remain under the Immigration Rules therefore it is highly unlikely that the Home Office would count the time spent with leave to remain under the Immigration Rules towards the five year settlement.
Submitting a valid application
To submit a valid application under the EU Settlement Scheme is currently free of charge. As part of the application process, the applicant would need to provide evidence of identity and biometrics would be taken (for third country nationals without an EU ID). The applicant must telephone the EU settlement team and request that they send an application form. This will be sent to them or their representatives directly personalised with their name already on the form so that it can only be completed by the applicant or their representatives. The evidence that supports the application is not yet clear however it is possible that applicants who have a biometric residence permit under the Zambrano route would not need to provide much more evidence in support of their applications to settle.
Frequently Asked Questions
Can you switch from the 10 year Article 8 route as a parent to the Appendix EU route as a Zambrano carer?
The applicant would need to let their leave to remain expire, which would naturally, be very concerning for them. It is worth noting though that if they are a Zambrano carer then even if their leave to remain expires they are (whilst we are in the EU) still lawfully present as a Zambrano carer, because this right arises automatically. They would have the right to live and work in the United Kingdom. However it is highly advisable to contact one of our immigration solicitors at Duncan Lewis before anyone allows their leave to expire.
What to do if the applicant’s application is refused?
Rights of appeal are due to come into force in due course, but currently if you are refused you can go to administrative review or otherwise apply again. If there are any problems with submitting a fresh application then the next step would be to telephone the Home Office’s EU Settlement team.
Which is better, the 10 year route or the five year Zambrano route?
Some people will need to weigh up the pros and cons and consider which option is best for them. People who are already on the 10 year route, but are considering allowing their leave to expire and applying under the Appendix EU route, will need to think particularly carefully before switching.
The table below demonstrates some of the key differences between the two options.
|Issue||10 year parent route||Appendix EU Zambrano|
|Time until indefinite leave||10 years continuous leave||5 years as a Zambrano carer (time before Appendix EU application can be counted)|
|Can you switch into this route?||Yes, including from Appendix EU and from being an overstayer||Not from leave granted under other parts of the immigration rules|
|Access to public funds||NRPF is the starting point, but public funds are possible if destitution is proved. Has to be proved all over again with each application and always a risk an NRPF condition will be imposed.||See Public Law Project notes – sounds like there will be NRPF.|
|Right to work?||Yes||Yes|
|Social services support?||Social services support Until can get NRPF condition lifted||Yes – if otherwise destitute/child in need|
|How many renewal applications needed?||Usually 3 renewals and then a settlement application||Usually only one settlement application|
|Home Office fees?||£1033 for renewals (fee waiver possible but risky), £2,389 for settlement (no fee waiver possible). These fees are per person.||Free|
|Immigration Health Surcharge?||£400/year of visa (so £1,000 per limited leave to remain application)||None|