June 2022: Legal update for Non-EU national parents / primary carers of British children

The ‘Akinsanya’ case & what happened next

On 25 January 2022, the Court of Appeal gave its decision in a legal case called ‘Akinsanya’ about the rights of primary carers of British citizen children to apply for immigration status under the EU Settlement Scheme.

This Rights of Women update gives some background information, a summary of what the Court of Appeal said and what Government has said will happen now.  

Who should read this update?

This update may be relevant to you if:

  • you are not a British or EU citizen; AND
  • you do not already have indefinite leave: AND
  • you do not already have status under the EU Settlement Scheme; AND
  • you are the parent or primary carer of a British citizen child living in the UK; AND
  • you were the parent or primary carer of a British citizen child living in the UK before 31 December 2020.

Background

When the UK was still a member of the European Union (EU), the law was that the primary carer (usually parent) of a British citizen child must have a right to reside in the UK if their child would be unable to live in the UK without them. These primary carers were known as ‘Zambrano carers’ and were said to have a ‘Zambrano right to reside’ or a ‘derivative right to reside’.

After the UK left the EU, from 31 December 2020, EU law stopped applying in the UK. 

The EU Settlement Scheme was brought in to enable those in the UK under EU law to apply to remain in the UK after EU law stopped applying in the UK.

In May 2019, primary carers of a British citizen child – ‘Zambrano carers’ – were included in the EU Settlement Scheme. This enabled ‘Zambrano carers’ to make a free immigration application for pre-settled status (five years limited leave) or settled status (indefinite leave).

Those who had been caring for a British child for less than 5 years could potentially apply for pre-settled status (which does not give entitlement to welfare benefits), and those caring for a British child for more than 5 years could potentially apply for settled status (which does give entitlement to welfare benefits).

When the UK Government wrote the rules of the EU Settlement Scheme for Zambrano carers in 2019, they made it so that anyone who already had leave in another immigration category (e.g. limited leave as the parent of a British child) would be refused under the EU Settlement Scheme. This prevented many non-EU national parents of British children from applying to the EU Settlement Scheme because they had previously done the right thing by getting a grant of limited leave as the parent of a British child.

A Court case was brought to challenge the legality of this position. The UK Government indicated that, whilst the Court case was ongoing, they would not decide any Zambrano applications to the EU Settlement Scheme that might be affected by the judgement.

What did the Court of Appeal decide in the ‘Akinsanya’ case?

Ms Akinsanya is a Nigerian mother of a British child. When she made her EU Settlement Scheme application in 2020, she already had limited leave as the parent of a British child. She applied to the EU Settlement Scheme asking for a grant of settled status but was refused by the Home Office because she already had leave. Ms Akinsanya took her case to court and won the first stage of her case in the High Court in June 2021. The UK Government challenged the case further by appealing to the Court of Appeal who made a decision on 25 January 2022.

The Court of Appeal decided that the UK Government lost the argument and Ms Akinsanya won her case. But the Court’s decision on its own is not enough to mean Ms Akinsanya, or anyone in a similar position, should succeed in their EU Settlement Scheme applications.

That is because the Court said that the UK Government had acted unlawfully in writing the rules of the EU Settlement Scheme in the way they did. However, the Court did not tell the UK Government what the rules should be. Also, the Court agreed with the UK Government that the correct interpretation of EU law is that a person is not a Zambrano carer during any period in which they also had limited leave.

After the Court of Appeal decision, it was then up to the UK Government to look again at the rules of the EU Settlement Scheme as they relate to ‘Zambrano carers’ and make any changes Government thought would be appropriate and lawful.

Government’s announcement on 13 June 2022

On 13 June 2022, the Government announced the outcome of its review into the EUSS Zambrano route after the Court of Appeal case.

The UK Government has confirmed its policy that it will not treat someone with limited leave as a Zambrano carer (note: this does not apply where someone has pre-settled status, a type of limited leave, under the EU Settlement Scheme). This means that the UK Government is adopting the EU law rule that a person cannot qualify for a Zambrano right to reside at any time they also have limited leave.

The effect of this is that anyone who had limited leave on 31 December 2020 (unless they had pre-settled status under the EUSS) is not eligible under the EUSS Zambrano route. In addition, where someone did not have limited leave on 31 December 2020, but had limited leave before this date, they will not be able to rely on any period when they had limited leave as contributing towards their residence under the EUSS Zambrano route.

Government has now accepted that those without limited leave can potentially qualify under the EUSS Zambrano route and accepts that the fact that they could qualify under another immigration route instead does not prevent them from qualifying as a Zambrano carer. Home Office published guidance to caseworkers now reflects this understanding.

Government will now resume making decisions on EUSS Zambrano applications that had previously been on hold pending the announcement made on 13 June 2022.

FAQ: What if I have already made an EU Settlement Scheme application?

If you have already made an EU Settlement Scheme application as a Zambrano carer and are still waiting for a decision from the Home Office, it is likely you will receive a decision soon now that the Home Office has resumed decision making.  

You should seek updated legal advice about your pending EU Settlement Scheme application and how it might be affected by the Government’s announcement.

Your EUSS Zambrano application is likely to be refused if:

  • You are a person who had limited leave (except pre-settled status under the EUSS) on 31 December 2020.
  • You did not have limited leave (except pre-settled status under the EUSS) on 31 December 2020, but you have been granted limited leave since that date and then went on to make an EUSS Zambrano application (unless you had already accrued 5 years continuous residence as a Zambrano carer before being granted limited leave)  

Before any EUSS Zambrano application is refused, the Home Office must consider whether you qualify under any other category of the EUSS and so it is important to provide the Home Office with information about any other EUSS categories you may qualify under e.g. as the family member of an EU citizen.

If your application is likely to be refused, and you do not currently have limited leave or you have not already made a human rights application to the Home Office separate from your EU Settlement Scheme application, you should seek legal advice as soon as possible.

Your EUSS Zambrano application may succeed, subject to meeting other qualifying criteria, if:

  • You have never had limited leave and have made an application to the EUSS
  • You have had limited leave in the past, but, didn’t have limited leave on 31 December 2020 and haven’t held it since
  • You have limited leave now, which has been granted to you since 31 December 2020, and before this grant of leave you did not have leave for at least five years and throughout that five year period you were a Zambrano carer.

FAQ: What if I have not made an EU Settlement Scheme application?

If you meet the above criteria under the section ‘who should read this’ and you have not yet made an EU Settlement Scheme application as a Zambrano carer then you should seek urgent legal advice about making an application.

You may be able to obtain status under the EUSS, subject to meeting other qualifying criteria, if:

  • you did not have limited leave on 31 December 2020 and you have not had it since; or
  • you did not have limited leave on 31 December 2020 and you were granted limited leave since that date but had already accrued five years continuous residence in the UK as a Zambrano carer before being granted leave.

If you have received legal advice about the EU Settlement Scheme before, it may still be necessary for you to get advice again, as the position has changed since you last received advice.  

An EUSS Zambrano application made now is ‘late’ because it is after the 30 June 2021 deadline for applications to the EU Settlement Scheme. However late applications are permitted in some circumstances:

  • Zambrano applications will certainly be permitted up to and including 25 July 2022.
  • Zambrano applications made on or after 26 July 2022 can still be made. The Home Office will consider applications made on or after 26 July 2022 if it determines there are ‘reasonable grounds’ for the delay in making the application.

FAQ: What if my EUSS Zambrano application is refused?

There are options to challenge a refusal that is made under the EUSS. These options include:

  • an application for administrative review, which is an internal review conducted by the Home Office. Such an application costs £80 and must be made within 28 days of receiving the decision.
  • an appeal to an independent court called the First-tier Tribunal (Immigration & Asylum Chamber). Such an appeal costs £140 and must be made within 14 days of receiving the decision. If you choose to apply for administrative review first and that is unsuccessful, you can still make an appeal within 14 days of the administrative review refusal.

Whether you choose to challenge the refusal depends on various factors, one of which should be whether your challenge stands any chance of succeeding. You will likely need advice from a lawyer to help you understand whether it is worthwhile challenging a refusal. You should get legal advice as soon as you receive a decision so that you can take action before the relevant deadlines expire. You generally cannot challenge a refusal if you miss the deadlines.

If you are unable to get legal advice before the above deadlines to challenge a refusal, you should consider making an application for administrative review or appeal in time to protect your position while you continue to try to get legal advice.

Further information

The ‘Akinsanya’ case was brought by the legal team at Hackney Law Centre. Their website contains helpful information including the news that Ms Akinsanya intends to continue her challenge against the Home Office: https://hclc.org.uk/news.

Rights of Women’s EU Settlement Scheme advice line is open to women living in England & Wales who have experienced or are at risk of Violence Against Women & Girls (including domestic abuse, sexual violence, trafficking, modern slavery, so-called honour-based violence and FGM). Interpreters are available.

Call: 020 7118 0267

Weekly opening hours:

Tuesdays 11am – 1pm & 2pm – 4pm

Wednesdays 11am – 1pm & 2pm – 4pm

© Rights of Women

30 June 2022


 
 
 

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