The Zambrano case

What is the Zambrano case?

The Zambrano case refers to a case in the Court of Justice of the European Union which resulted in an amendment to European Economic Areas (EEA) regulations.

The Zambrano case, titled Gerardo Ruiz Zambrano v Office National de l’Emploi, was an appeal by parents of Colombian nationality whose Belgian-born children would not be able to exercise the Treaty rights they are entitled to should their parents be asked to leave the country.

The Zambrano judgement established that a third country national parent who is the primary carer of an EEA minor child could not be refused a right to reside and work in the host member state if the refusal of a right to reside would force the EEA child to leave the country, thus depriving them of their European citizenship rights.

Because of the ruling and subsequent amendments to EEA regulations the Zambrano case now acts as an immigration route that states that EU member states can grant a right of residence the primary carer of an EU national child if refusing this would mean the child’s care would be jeopardised.

The Zambrano Case and the EU Settlement Scheme

In terms of UK immigration, the Zambrano case meant that the primary carer of a British citizen who is residing in the UK had a right to reside under EU law if their removal from the UK would require the British citizen to leave the EEA.

The UK’s exit from the European Union has meant that many UK immigration rules have changed but the EU Settlement Scheme was introduced to protect the rights of EU citizens residing in the UK, this includes Zambrano carers.

From 1 May 2019, a ‘person with a Zambrano right to reside’ has been able to apply for settled status (indefinite leave to enter or remain in the UK) or pre-settled status (limited leave to enter or remain in the UK) under the EU Settlement Scheme if they were in the UK prior to December 31st 2021.

Who qualifies as Zambrano carers?

The grounds upon which UK residence is accepted via Zambrano are complex as the Home Office takes into account the specific detail of the individual child in question in all applications.

If you do not have EU citizenship, but you are the primary carer of a British citizen living in the UK then you could qualify as a Zambrano carer and be entitled to a derived right of residence.

In a recent high court ruling, R (Akinsanya) v Secretary of State for the Home Department [2021], the court found that Zambrano carers can apply for leave to remain or indefinite leave to remain under the EU Settlement Scheme even if they already have limited leave to remain under the UK immigration rules. This means that both those with leave to remain and those without immigration status could be eligible to apply for leave to remain as a Zambrano carer.

Zambrano carers who do not have leave to remain must have applied by 30th June 2021. Those who do have leave to remain should make an application as soon as possible.

What are the pros and cons of the Zambrano carer right of residence?

The Zambrano carer right of residence was created because of a specific immigration case ruling. Because of this, the regulations are more flexible and relative than within the UK visa and immigration systems. As a result, it is important to weigh up the pros and cons before you consider this as an option to gain Entry Clearance into the UK.

The pros of the Zambrano right of residence include:

• That Zambrano can allow you to enter, live and work in the UK provided you are the primary carer of your child
• That the Zambrano right of residence allows you to gain ILR in the UK when you may otherwise not be eligible
• If you gain Entry Clearance into the UK using the Zambrano route, you will not be restricted by the regulations of a specific UK visa.

The cons of the Zambrano right of residence include:

• That only ‘basic support’ is given to EEA children in the UK under the Zambrano route. This does not include social assistance by local authorities
• That the parents of an EEA child must have the right to work and residence in the specific Member State to protect the right of a child to live in Europe
• That one member of the couple must be a European Citizen who is perfectly able to assume the total responsibility and care of the child.

How can IAS help?

We often find that the Zambrano process can be confusing for applicants. This is because EU laws are in a current state of flux, making applications like this very complex. This is why we have a team of expert immigration lawyers, who are up-to-date with all current EU laws and regulations.

We can help to simplify the Zambrano application process for you. Our services include an assessment of your eligibility and a full document check.

Your lawyer will also prepare a Letter of Representation to accompany your application for Zambrano if you proceed with one. This letter details your case and its merits as well as referencing any relevant UK immigration laws in support of your application.

We will take all factors into consideration to determine if you and your child qualify for a Zambrano case application. Make an enquiry online or call now on 0333 363 8577 to discuss your prospects with an IAS lawyer today. We have branches based in London, Manchester, and Birmingham. Alternatively, you can use our office finder to find your closest branch.