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Derivative Residence Card Extension/Zambrano Rights

Our client, who is the sole carer of her British daughter, was granted a Derivative Residence Card for five years in 2013 under the EEA Regulations. After having completed five years, she applied for the extension of her Derivative residence card as, under the EU law, there is no provision for permanent residence for people who have had derivative residence cards. Now there is a provision for indefinite leave to remain under the EU Settlement Scheme of the immigration rules for the people who have had five years of derivative residence in the UK. However, our client had applied before this scheme came in force. Her application was refused on the ground she could have made a new application under Appendix FM of the immigration rules. The Secretary of State relied upon Patel vs SSHD [2017] EWCA Civ 2028. In her decision, the Secretary of State accepted that our client is the primary carer of the British child.
We applied for indefinite leave to remain for our client under the EU Settlement Scheme and at the same time appealed the decision of the Home Office on the ground that Patel vs SSHD [2017] EWCA Civ 2028 is regarding the joint primary carers, i.e. the British partner of the applicant is contributing in the upbringing of the child whereas our client was sole carer with no British partner. We also brought to the notice of the First-tier Tribunal that the appeal against the decision of the Court of Appeal in Patel vs SSHD [2017] EWCA Civ 2028 has already been heard by the Supreme Court on 7 May 2019. Therefore the appeal may be sisted(adjourned) until the Supreme Court delivers its decision in the said appeal. The First-tier Tribunal has sisted the appeal until the Supreme Court delivers a decision in the said appeal. The appeal against the decision of the Secretary of State was lodged to preserve the working rights of our client until her indefinite leave to remain application under the EU Settlement Scheme is decided.

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