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Briefing: to Zambrano or not to Zambrano?
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Briefing: to Zambrano or not to Zambrano?

The important case of Akinsanya, which we introduced in these articles, has opened the door for many non-European primary carers of British citizens to now apply for residence rights under the EU Settlement Scheme. There are many advantages to doing so — but also some pitfalls and potential issues to consider, which this post aims at highlighting. It is likely to be of most use to readers already familiar with the Zambrano route for carers and with the Settlement Scheme, which we won’t recap in any detail.

Preliminary health warning

The most important point to make to begin with is that the Home Office is applying to the Court of Appeal for permission to appeal. If it were to get permission, and eventually win, then we might be back in a position where those who already have permission to remain under another part of the Immigration Rules are shut out of the Settlement Scheme.

In addition, it is not clear how exactly the Home Office will re-write the rules in light of the Akinsanya decision. They could remain restrictive despite the ruling.

As such, while no-one can predict the future, it is important for carers to protect their position by also submitting applications under the UK family immigration rules if need be.

Zambrano carers and the EU Settlement Scheme

We assume that the majority of those reading this post will already be familiar with the Zambrano route. By way of very brief (and slightly simplistic) explanation, Zambrano carers are non-EU citizens who are primary carers of British citizens. They derive a right to reside in the UK on the basis that, if they were to leave the UK, the British citizen would be compelled to leave the EU. Importantly, as Zambrano rights derive from EU law, they are only available to those who became primary carers of British citizens before 31 December 2020.  

Since May 2019, Zambrano carers have been able to apply under the EU Settlement Scheme. Successful Zambrano applicants get five-year “pre-settled status” (limited leave to remain) if they have been the primary carers of British citizens for less than five years. Pre-settled status gives the right to work, study, access the NHS, and access some public funds (more details below). It is time-limited, meaning that people with pre-settled status will need to apply to renew their leave before their pre-settled status expires.

Zambrano carers who have been the primary carers of British citizens for five years or more get “settled status” (indefinite leave). Settled status gives the right to work, study, access the NHS, and access all public funds. It has no time limit.

Example 1

Ariel is a Nigerian national. She is the primary and sole carer of a British citizen child, Aaron. Aaron was born in the UK on 5 March 2018. He was born a British citizen.

Ariel submits an application under the EU Settlement Scheme on 22 June 2021. She is granted pre-settled status on 1 July 2021, valid until 30 June 2026.

On 5 March 2023, on Aaron’s 5th birthday, Ariel can apply for settled status.

Example 2

Sandra is from Ghana and the single mother of a British citizen child, Sam. Sam was born in the UK on 5 March 2015. He was born a British citizen.

Sandra submits an application under the EU Settlement Scheme on 22 June 2021. She is granted settled status on 1 July 2021.

But while there has been provision for Zambrano carers to apply under the EU Settlement Scheme for over two years, until a couple of weeks ago those who already had permission to remain in the UK other than under Appendix EU were excluded. This was the case of many Zambrano carers who, in the past, applied for permission to remain as parents under Appendix FM to the Immigration Rules. The advantages of taking that route rather then relying on EU law rights were that:

  1. it provides a route to settlement, whereas Zambrano carers were not eligible for permanent residence under the EEA Regulations, and
  2. it was possible to apply to have the condition of no recourse to public funds lifted, which was not possible for Zambrano carers otherwise.
Example 3

Ariel, Aaron’s mother, went to see an immigration lawyer in May 2018, when Aaron was two months old. The immigration lawyer explained to Ariel that she could apply for a Zambrano EEA residence card, but this would not lead to indefinite leave in the UK and she wouldn’t have access to benefits. The lawyer also explained that there was no guarantee that the status of Zambrano carers would be protected after the UK left the EU, as the British government hadn’t made any announcements about Zambrano carers at the time.

The immigration lawyer explained to Ariel that, in the alternative, she could apply for permission to remain under Appendix FM, relying on the fact that Aaron was a British citizen and that it would be unreasonable for Aaron to leave the UK. They explained that, if Ariel was granted permission on that basis, she could ask for access to public funds. They also advised Ariel that she would be eligible to apply for indefinite leave to remain once she had lived in the UK for ten years.

Ariel knew that, as a single mother, she would struggle to care for Aaron and earn enough without also getting public funds. She was also keen on eventually being able to settle in the UK. She therefore applied for permission to remain under Appendix FM. This was granted valid from January 2019 to July 2021.

Until the case of Akinsanya, the fact that Ariel had permission to remain as a parent under Appendix FM meant that she was unable to qualify for status as a Zambrano carer under the EU Settlement Scheme.

Main advantages of applying under the EU Settlement Scheme

We assume that the alternative for most Zambrano applicants thinking of applying under the EU Settlement Scheme would sticking with existing leave to remain granted under Appendix FM.

The main advantages of switching onto the EU Settlement Scheme are as follows:

1. No fees

Applications under the EU Settlement Scheme are free of charge.

By contrast, an application under Appendix FM currently costs £1,033 plus £1,560 for the Immigration Health Surcharge. Successful applicants under the EU Settlement Scheme can save thousands of pounds.

2. Faster settlement

As mentioned before, applicants who haven’t lived in the UK as primary carers of British citizens for more than five years get pre-settled status. As soon as they have accumulated five years, they can apply for settled status. The time starts ticking when they became primary carers, not when they got their first grant of status. In most cases, therefore, an applicant will submit one or a maximum of two applications before getting indefinite leave, and might qualify for indefinite leave sooner.

By contrast, applicants under Appendix FM get limited leave valid for 2.5 years, which they need to renew until they have accumulated either five years or ten years leave in the UK. At best, therefore, applicants are on a five-year route to settlement involving three applications (initial, extension, settlement). Those on a ten-year route are submitting no fewer than five applications, assuming they manage to put together the indefinite leave fee for their fifth application, and assuming they never “fall off” the route. Time only starts ticking when they get their first grant of leave.

Example 4

Ariel was first granted permission to remain as a parent in January 2019, valid to July 2021, on a ten-year route to settlement. If she remains on this route, she will need to apply for leave to remain again every two and a half years; in 2021; 2024; and 2027.

In January 2029, she will finally be eligible for indefinite leave to remain. Settlement fees can’t be waived, so Ariel can only actually get indefinite leave if she were able to put together the fee, which is £2,389 at the moment (but may well have increased by 2029).

If Ariel instead applies for pre-settled status in June 2021, and this is granted on 1 July 2021, she will get status valid until 30 June 2026. In March 2023, on her son’s fifth birthday, she can apply for settled status.

In this scenario, Ariel will have saved herself two applications, six years and over £2,000.

Now, there will be some applicants who will get to indefinite leave to remain sooner on their current route than if they were to apply under the Settlement Scheme.

Example 5

Let’s say that Ariel first got permission to remain in August 2012, on the basis of having lived in the UK for 20 years, and has been on a ten-year route to settlement since then. She has successfully renewed her permission every 2.5 years, and is currently on the home stretch, becoming eligible for indefinite leave in August 2022.

Assuming she can pay the settlement fee, she would get there quicker by seeing out her current route. Ariel might decide not to apply under the Settlement Scheme since that would entail waiting until March 2023.

3. Fewer requirements

Parents on an Appendix FM ten-year route to settlement must show, simplifying somewhat, that they have parental responsibility for their children and that it would be unreasonable for their children to be removed from the UK.

Parents on an Appendix FM five-year route to settlement must show that they have parental responsibility for their children; that they speak English (with the required level increasing over time); and that they meet a financial requirement.

By contrast, Settlement Scheme applicants simply need to show that they are the primary carers of their children and that, if they left the UK, their children would be compelled to leave the EU. When the applicant is a parent and sole carer, this will be relatively easy. Things can get slightly more complex when there are two primary carers, but it remains a winnable argument.

Potential disadvantages

Although there are many advantages, there are some issues to be conscious of.

1. Risk of refusal and need for parallel applications

As mentioned above, there is still a possibility that the rules will not be changed favourably by the Home Office, to the point that some applicants who have permission to remain under another route could still be refused under the EU Settlement Scheme. If someone on the parent route only submitted an application under the Settlement Scheme and let their permission as a parent run out, they could have their EUSS application refused and, eventually, become an overstayer.

To avoid this, it is important that applicants also submit an application to renew their permission as a parent before the expiry of that permission.

In many other cases, it is not possible to have two applications pending at the same time. But the High Court has helpfully confirmed that it is allowed in these circumstances.

Example 6

Per example 3 above, Ariel currently has permission to remain as a parent, valid from January 2019 to July 2021.

She now decides to submit an application for EU pre-settled status. It is important that she also submits an application to extend her existing permission before it expires in July 2021.

If she doesn’t, and her application for pre-settled status (and any appeal) is refused, she will become an overstayer in the UK. Although it will be possible for Ariel to then re-apply for permission as a parent, she will for a period have no immigration status — and so no right to work, study, access the NHS etc. She might also break the continuity of her residence in the UK, and have to re-start the ten-year route from scratch.

2. Delays

Zambrano Settlement Scheme cases are not going to be decided quickly. The Home Office is trying to appeal the ruling allowing them and, in any event, will need time to re-write the Appendix EU rules. As a result, decisions have been put on hold.

3. Benefits

People with full EU settled status can access all public funds. Therefore, anyone who has already clocked up five years as a Zambrano carer will, if their Settlement Scheme application is successful, have access to public funds.

The situation is more complex for those with pre-settled status. As the law stands, Zambrano carers who only have pre-settled status will be refused benefits which require the claimant to have a “right to reside”. Benefits requiring a right to reside include:

  • Universal Credit, housing benefits, and child benefits;
  • benefits which Universal Credit has replaced but which some people might still be receiving, including income support, income-related employment and support allowance, income-based jobseeker’s allowance and child tax credit;
  • housing provided to homeless people and allocation of social housing.

Pre-settled status is not a qualifying right to reside for the purposes of those benefits. Although this is a contentious issue, and currently subject to litigation in a case called Fratila, as things stand those benefits will be refused.

There are some benefits and assistance which Zambrano carers with pre-settled status will be able to access, though. Those include:

  • Contributory benefits, such as “new style” job-seeker allowance and employment and support allowance;
  • Benefits which do not have a specific “right to reside” requirement, such as disability living allowance; attendance allowance; personal independence payment; carer’s allowance; maternity allowance and industrial injuries benefit.

Lastly, Zambrano carers with pre-settled status might get social services assistance, including assistance under section 17 of the Children Act 1989 for children in need; and assistance given to people with disabilities, elderly and chronically sick people.

The reason this is a potential disadvantage is because Appendix FM parents can apply to have their condition of “no recourse to public funds” lifted, at which point they are able to access all benefits, including those which require the claimant to have a right to reside.

On the other hand, of course, there will be carers who already have a condition of “no recourse to public funds”. For them, provided they can afford to continue living without access to benefits, switching to pre-settled status won’t make a difference. In fact, they would now be eligible for contributory benefits and benefits which do not have a right to reside requirement, which they were not eligible for under Appendix FM.

Example 7

Our friend Ariel currently has access to public funds and receives Universal Credit, housing benefits and child benefits.

If she were to switch to pre-settled status, Ariel would be able to upgrade to settled status in March 2023. While she is on pre-settled status, as the law is currently interpreted, Ariel won’t have access to any of the benefits she is currently receiving.

But: so long as Ariel submits both a pre-settled status application and an extension application, she will keep her existing rights (including benefits) while the former is. For the sake of the examples above, we have assumed that Ariel would get a decision on her pre-settled application very quickly, but in reality she is more likely to be waiting months and months. In the meantime, she can continue to access Universal Credit, housing benefits and child benefits. Once she is granted pre-settled status, though, that entitlement will end.

Applying after the Settlement Scheme deadline

The main deadline for EU Settlement Scheme is 30 June 2021. Any Zambrano carer who currently does not have any permission to be in the UK should absolutely apply by then. Similarly, any Zambrano carer who would be eligible for settled status would gain no advantage from applying out of time.

I would very rarely canvass the advantages of making an immigration application after the relevant deadline. However, there will be some Zambrano carers who simply cannot afford to “switch” to pre-settled status now because of the benefits issues, and who may decide to apply later on. Late applications are possible, as the Rules themselves and the consent order in Akinsinya confirm.

Easy solution, then? Not necessarily. The Home Office may yet try to amend the Rules to exclude Zambrano carers, or to distinguish between those who applied before 30 June and those who applied later. There is no guarantee that one can have the best of both worlds: that is, continue to have recourse to public funds and then switch to settled status whenever they have accumulated five years. If at all possible, Zambrano carers who can’t make the deadline should at least try to apply sooner rather than later, ideally within the minimum six-week window that the Akinsinya consent order allows for (see previous article).

With that important caveat in mind, those who quite simply cannot afford to switch to pre-settled status in the short term might find it worthwhile coming back to check whether they could switch settled status once they have completed five years as Zambrano carers.  

Example 8

Because of the issues with her benefits identified in example 7 above, Ariel decides to only apply to renew her existing permission as a parent and not apply for pre-settled status.

In March 2023, assuming the Home Office changes the Appendix EU rules favourably, Ariel would then become eligible to apply for the full EU settled status. In that scenario, she will have continued to access the public funds she needs, but will also have shortened her route to settlement.

Unfortunately, we cannot stress enough that there is no guarantee that this will work and so applicants should not rely on this possibility if they are not willing to run any risk of being refused under the Settlement Scheme.

Conclusion

It is not possible to address every scenario under the sun. A decision on whether to apply under the Settlement Scheme or not will need to be made bearing in mind the specific facts of each case.

For some applicants, including those who have been primary carers of British citizens for more than five years, using the Settlement Scheme will be a “no brainer”. If their application is successful, they will be granted the full EU settled status, with all of its advantages. The main point for them to bear in mind will be to ensure that they protect their existing leave just in case.

For others, deciding whether to apply will need more thinking and balancing pros and cons, including access to public funds versus the opportunity to reach settlement quicker.

We hope this post can serve as a good starting point to think of those pros and cons and apply them to your clients’ situations. We would be interested to hear about any considerations we may have missed.

I am very grateful to Simon Cox of Doughty Street Chambers and Eva Doerr of One Pump Court for their help with this piece. Any mistakes, though, are entirely mine.

Nath is an immigration solicitor and Senior Caseworker at Islington Law Centre. She is also a co-convenor of the ILPA Family and Personal Migration Working Group and a trustee of JCWI. She tweets: @NathGbikpi.

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