This blog entry was written by our Immigration Manager, Boris.
Who is a Zambrano carer?
The term ‘Zambrano carer’ comes from a case decided in the European Court of Justice (ECJ) in 2011, involving a couple who were non-EU (Colombian) citizens and parents of two Belgian EU citizen children born in Belgium. The parents were failed asylum-seekers and not entitled to any immigration status under Belgian law at the time. However because their children would otherwise be deprived of their rights as EU and Belgian citizens if their parents were forced to leave, the court held that the parents had to be granted status, even if they do not otherwise qualify under national immigration law. Hence, someone who qualifies under this principle is referred to as a ‘Zambrano carer’.
As the UK was part of the EU at this time, the court decision also applied to non-EU citizen parents of a British child. Since the ECJ decision in 2011, parents who are the primary carers of a British child have been able to qualify for status in the UK as ‘Zambrano carers’. After the EU Settlement Scheme (EUSS) was introduced in preparation for Brexit, Zambrano carers could apply for settled or pre-settled status in the UK.
However prior to June 2021, Home Office guidance held that someone could qualify as a Zambrano carer only if they had no other possibility of being granted leave to remain in the UK. So for instance, someone with leave to remain as a parent on the 10-year route could not apply as a Zambrano carer. Even someone with no leave to remain would have been refused status as a Zambrano carer, if they had a reasonable prospect of being granted leave to remain on another route under the Immigration Rules.
At SLRA, we currently receive many phone calls in which people ask about the scheme and want to know if they are eligible. Why is this scheme so important at the moment and what has changed?
In June 2021, there was a case called Akinsanya decided in the High Court that changed the rules around who can qualify as a Zambrano carer. The court held that the previous Home Office guidance (and the definition of a Zambrano carer in Appendix EU of the Immigration Rules) is wrong – that someone cannot be excluded from being a Zambrano carer simply because they can get leave to remain on another route.
Multiple applications – the Home Office agreed that someone can now apply under the EUSS as a Zambrano carer even if they have another pending application with the Home Office, and vice versa; both applications will be considered, as long as both are based on the same circumstances. (e.g. a parent on the 10-year route who also qualifies as a Zambrano carer, based on the same facts) This is a departure from the usual rule that someone can only have one application pending with the Home Office.
Deadline to apply – although the EUSS closed for most applications on 30 June 2021, the Home Office also agreed to extend the deadline for Zambrano applications, until at least six weeks after they publish new guidance on Zambrano carers (which has not yet been published). In addition, anyone who currently has leave to remain granted before 30 June 2021 can apply as a Zambrano carer at any point before their existing leave expires. So for instance, if someone was granted leave to remain as a parent on the 10-year route on 15 June 2021, and their leave expires on 15 December 2023 (in 30 months or two and a half years), they can make a Zambrano application any time before that expiry date.
However anyone who qualifies for settled status (more on that below) should apply as soon as possible.
Who is eligible to apply under the EUSS as a Zambrano carer?
Since the Akinsanya decision in June 2021, anyone can apply if they were living in the UK as a Zambrano carer by 31 December 2020 – in other words, if their child is British, they are or were the child’s primary carer and there are no suitable alternative care arrangements for the child in the UK. The basic question is whether the child would in fact leave the UK (and the EU) if the Zambrano carer had to leave, given the degree of emotional and material dependence.
What status does someone get under the EUSS as a Zambrano carer?
Those who can prove that they have been a Zambrano carer for at least five years will get settled status, which is the same as Indefinite Leave to Remain (ILR). If they have been a Zambrano carer for less than five years – for instance, if their child only became British less than five years ago, or was born British but is less than five years old – then they may only get pre-settled status, as long as they were living in the UK as a Zambrano carer by 31 December 2020. They can convert this to settled status when they reach the five-year mark.
What are the benefits of the Zambrano carer scheme?
First of all, the EUSS is a free application, while leave to remain on the 10 year-route needs to be renewed every two and a half years with fees of several thousand pounds each time, or an application for a fee waiver. Even those who qualify for fee waivers on the 10-year route will eventually have to pay a fee of £2,389 for Indefinite Leave to Remain, for which there are no fee waivers and which may increase in the future. Under the EUSS, those who qualify can get ‘settled status’ (same as Indefinite Leave to Remain), free of charge.
This is a big relief for many of the people we work with because the 10-year-route means going through a lot of uncertainty and pressure for a very long time, having to apply for fee waivers or pay hefty fees to the Home Office and the Immigration Health Surcharge every two and a half years, and at the end having to pay for ILR. On the EUSS it is a much simpler process and people can start to settle in the UK much sooner and with no fees, after one application, without thinking about saving money for visa renewal and without the pressure of applying for a new visa every two and a half years.
In the case of pre-settled status, there are still some uncertainties around benefits and whether those with pre-settled status are eligible to receive certain benefits such as Universal Credit. Currently, there is litigation pending on this issue before the European Court of Justice and the UK Supreme Court (a case called Fratila). Those who are currently receiving certain income-related benefits and have leave to remain on another route which is not expiring soon, and who may only qualify only for pre-settled status, may be best advised to wait. If their leave was granted before 30 June 2021, they should be able to apply as a Zambrano carer at any time before their leave expires, and by that time they may qualify for settled status; the rules around benefits and pre-settled status may also change, depending on the outcome of litigation on this issue.
Further Information:
- JCWI – guidance and information: “Are you the primary carer of a British citizen? The EU Settlement Scheme is now open to you”, here
2. Free movement – article: “Latest on Zambrano carers and the EU Settlement Scheme” – is about the latest information regarding benefits in case of pre-settled status, here.
3. Hackney Community Law Center – guidance and information: “Zambrano carers and the EUSS Scheme – What you need to know”, here