(Published 13 June 2022)

Following the Court of Appeal’s judgment in the case of Akinsanya, the Home Secretary has reconsidered the EU Settlement Scheme (EUSS) requirements for applicants relying on being a Zambrano primary carer.

Such a person is a direct relative or legal guardian who, at the end of the transition period on 31 December 2020, had a right to reside in the UK as the primary carer of a British citizen because, without that right, the British citizen would have been compelled to leave the UK and the EU. Such persons did not have a right under EU law to acquire permanent resident status in the UK and are not covered by the Citizens’ Rights Agreements. They were included in the EUSS from 1 May 2019 as more generous national provision. As set out in the Explanatory Memorandum to the relevant Immigration Rules changes (HC 1919),^{[footnote 1]} the intention was to protect those lawfully resident in the UK by the end of the transition period by virtue of a Zambrano right to reside, based on EU law.

The Court of Appeal judgment in Akinsanya held that the Home Office had erred in its understanding of regulation 16(7) of the Immigration (European Economic Area) Regulations 2016 in defining ‘a person with a Zambrano right to reside’ in the Immigration Rules for the EUSS in Appendix EU. However, the Court of Appeal found that, as a matter of EU law, a Zambrano right to reside does not arise where a person holds leave to remain.

The Home Secretary has carefully considered the Court of Appeal judgment and has decided that she no longer wishes that definition in Appendix EU to reflect the scope of the 2016 Regulations (which have now been revoked) but wishes it to reflect the scope of those who, by the end of the transition period, had an EU law right to reside in the UK as a Zambrano primary carer, in line with the originally stated policy intention. She therefore intends to maintain the requirement in sub-paragraph (b) of the definition that the applicant did not, by the end of the transition period and during the relevant period relied upon, have leave to enter or remain in the UK (unless this was under the EUSS).

This means applications will be considered under the existing Immigration Rules for the EUSS in Appendix EU. Applicants will be eligible for EUSS status in this category where, by the end of the transition period and during the relevant period relied upon, they met the relevant requirements of regulation 16 of the 2016 Regulations and did not have leave to enter or remain in the UK (unless this was under the EUSS).

From today, for a period of six weeks until 25 July 2022, people will be able to apply or re-apply to the EUSS as a ‘person with a Zambrano right to reside’ and be deemed to have reasonable grounds for having missed the deadline to apply, which was 30 June 2021.

Where a person applies after 25 July 2022, they will need to show there are reasonable grounds why they missed the 30 June 2021 deadline. You can find non-exhaustive examples of such grounds at www.gov.uk/settled-status-eu-citizens-families/eligibility.

(Courtesy: Home Office)