New Home Office Guidance On Zambrano Carers

• Published date: 07 July 2022
• Subject Matter: Immigration, General Immigration
• Law Firm: Richmond Chambers Immigration Barristers
• Author: Ms Jasmine Theilgaard

The Home Office has issued its much anticipated guidance in respect of individuals deemed to meet the definition of 'a person with a Zambrano right to reside' under Appendix EU.

Zambrano Right to Reside

Following the case of C-34/09 Zambrano, under EU law a non-EU citizen who was a primary carer of a British citizen could obtain a derivative right to reside in the UK. The Zambrano right to reside was most recently incorporated into domestic legislation in Regulation 16 of the Immigration (European Economic Area) Regulations 2016. A number of considerations, which included the fact that it was not possible to apply for permanent residence as a person with a derivative right to reside, meant that many individuals who may have been eligible chose to apply under alternative provisions in the Immigration Rules, for example under Appendix FM. However, under the provisions of Appendix EU published as a result of the UK's departure from the EU, an individual who met the definition of 'a person with a Zambrano right to reside' could have the possibility of obtaining Settled Status in the UK. Unfortunately though, Appendix EU precluded individuals from meeting this definition if they already held leave to remain under the Immigration Rules.

In 2021, in R (Akinsanya) v Secretary of State for the Home Department [2021] EWHC 1535 (Admin), the High Court considered the definition of a 'person with a Zambrano right to reside' contained in Appendix EU. The rules had previously stated that a person who held permission under a route other than Appendix EU of the Immigration Rules could not be considered to meet the definition of 'a person with a Zambrano right to reside'. In the judgement of Mostyn J, this provision was not in accordance with the EEA Regulations 2016 or EU law. In a consent order following this judgement, the Secretary of State was required to reconsider her definition of a 'person with a right to reside'. The judgement of the High Court was considered in our article here.

The Secretary of State appealed the decision of the Court of Appeal, leading to the case of Akinsanya v Secretary of State for the Home Department [2022] EWCA Civ 37 . In a judgement handed down on 25 January 2022, the Court of Appeal dismissed the government's appeal. The Court of Appeal agreed that the Secretary of State had misunderstood domestic law in the EEA Regulations 2016. However, it was held that the provisions of Appendix EU were not inconsistent with EU law. A full...