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Zambrano Case EU Settlement Scheme

Our client is a mother of a British child. She is a Pakistani national. In 214, she made an application under the EEA Regulations in force at that time. Her application based on her British son was refused by the Home Office. She appealed the decision. Our Vikas Sharma went to the First-tier Tribunal in Glasgow to argue the matter. The appeal was allowed and in December 2015 she was granted a derivative residence card as a Zambrano carer. However, the Zambrano route didn't lead to permanent residence in the UK and the reliance on the long residence route under the immigration rules would have taken her 10 years to get indefinite leave to remain. Hence, she made an application under Appendix FM under the parental route and she was granted leave to remain under the five year route which meant that she would get indefinite leave to remain in 5 years time instead of 10 years time. Interestingly, when the EUSS scheme came into force, there was a provision for indefinite leave to remain for people on the Zambrano route. Our client made an application in December 2020 for indefinite leave to remain based on the Zambrano route. Her leave under the parental route was coming to an end in March 2021, therefore, she made an application under Appendix FM of the immigration rules for its extension. In July 2021, she received a decision on her Zambrano application from the Home Office. As per the decision, her Zambrano application has been varied by her Appendix FM application and it wouldn't be considered. We submitted a Pre-Action Protocol letter for Judicial Review to the Home Office. Our PAP letter was based on the Home Office guidance that the Secretary of State is required to consider both applications - one under the EUSS and the other under human rights. In October 2021, the Home Office withdrew its decision not to consider our client's application under the EUSS and reinstated her application for indefinite leave to remain based on the Zambrano route. The Home Office decision also said that the indefinite leave to remain application under the Zambrano route will be decided after the Court of Appeal decision in Akinsanya v Secretary of State for the Home Department [2022] EWCA Civ 37. The Court of Appeal made a decision in the said case and dismissed the appeal of the Home Office. Hence, the Secretary of State is now to reconsider the definition of the person with a Zambrano right to reside which says that a person who held UK immigration leave (other than under Appendix EU to the
Immigration Rules), or who had a realistic prospect of obtaining leave to remain in the UK on an alternative basis, could not meet the Appendix EU definition of a ‘person with a Zambrano right to reside (see Annex 1 of Appendix EU). We are hoping that now the Home Office will not prohibit Zambrano derivative cardholders to be granted indefinite leave to remain even if they had leave to remain out of EUSS.

It is pertinent to mention that her leave to remain application under the parental route of Appendix FM was allowed in January 2022. Now we are awaiting a decision on her indefinite leave to remain application under the EUSS. If her indefinite leave to remain application under the Zambrano route of the EUSS is allowed, she will not only save 1 year but also a hefty fee which she will be required to pay for her indefinite leave to remain application under the parental route application for Appendix FM.