The EU Settlement Scheme is the new immigration category aimed at protecting residence rights of EEA nationals in the UK before a specified date, and their family members. 2019 was marked by some positive developments, including the inclusion of Chen, Teixeira/Ibrahim, and Zambrano cases, (also referred to as derivative right to reside cases) within the EU Settlement Scheme.
The Zambrano case established that member states cannot refuse a person the right to reside and work in the host member state, where:
that person is the primary carer of a Union citizen who is residing in their member state of nationality, and refusal of a right of residence to that primary carer would deprive the Union citizen of the substance of their European citizenship rights by forcing them to leave the EEA.
In practice, this meant that the primary carer of a British citizen who is residing in the UK has a right to reside under EU law if their removal from the UK would require the British citizen to leave the EEA.
This right of residence is not a right conferred by Directive 2004/38/EC (“the Directive”) but is instead a right derived from the right of Union citizenship contained in Article 20 of the Treaty on the Functioning of the European Union (a “derivative right‟). As a result, someone who has a derivative right of residence is not entitled to all of the benefits, which flow, from a right of residence arising under the Directive. In particular, those who acquire a derivative right of residence cannot acquire permanent residence in the UK.
This position has changed when applying under the EU Settlement Scheme and those with Zambrano right to reside can qualify for settlement after 5 years.
However, the Home Office position is that as Zambrano application centres on a person seeking to remain in the UK as the primary carer of a British citizen. There is significant overlap with the right to respect for private and family life, which is protected by Article 8 of the European Convention on Human Rights. Where a person wishes to remain in the UK on the basis of family life with a British citizen, they can make an application for leave to remain under Appendix FM to the Immigration Rules. A derivative right to reside is a right of last resort, which only applies if a person has no other means to remain lawfully in the UK.
This is not correct in law. We have assisted clients to challenge their cases in such circumstances and have had a successful outcome. If you have a query, contact us now to find out how we can assist.