Zambrano carers and the EUSS Scheme – What you need to know
Zambrano carers and the EUSS Scheme – What you need to know
The Akinsanya judgment on 9 June 2021
On 9 June 2021 the High Court ruled that the Home Office had misunderstood EU law; Zambrano carers rights to reside under EU law until 30 June 2021 were not affected by a grant of limited leave to remain, or by the possibility of getting limited leave to remain. The judgment is R (Akinsanya) v Secretary of State for the Home Department  EWHC 1535 (Admin).
Under the EU Settlement Scheme (EUSS) in Appendix EU to the Immigration Rules, Zambrano carers are only entitled to EUSS leave to remain if they do not have any other leave to remain. Home Office guidance added that Zambrano carers cannot have EUSS leave to remain if they could get other leave to remain.
In the Akinsanya judgment, Mr Justice Mostyn quashed the unlawful guidance. He also declared that the definition in Appendix EU of Zambrano carers is unlawful. He allowed the Home Office time to reconsider Appendix EU. It is not clear whether the Home Office will amend it or how they will amend it.
The Home Office will also ask the Court of Appeal for permission to appeal. Their application will be made on 21 June 2021 and will ask the Court of Appeal to deal with it very quickly (expedition). It is possible the Court of Appeal will decide the case in July, but it may not be until Autumn 2021.
The Akinsanya Consent Order on 17 June 2021
The Home Office will not reconsider Appendix EU until after the Court of Appeal proceedings, leaving Zambrano carers who have pending or possible applications under EUSS in a very uncertain situation. So Ms Akinsanya went back to court on 17 June 2021 asking for the Court to extend the time for Zambrano EUSS applications. The Home Office agreed to extend time and to set out their position on Zambrano carers until they have reconsidered Appendix EU.
Please follow the link to view the agreed Court Order and see below for a summary of what you need to know.
Does the 30 June 2021 deadline still matter?
Yes. The best way a Zambrano carer can protect their residence rights is to submit an EUSS application on or before 30 June 2021. If you do this, the Home Office will provide you with a certificate of application confirming your entitlement to work, study and rent a place to live, until final determination of your Zambrano application, see Consent Order. [i]
Zambrano applicants cannot apply online, you must request a paper application first. You can do this by telephoning the Home Office UKVI Resolution Centre on 0300 123 7379. If you ask for the form to be emailed, you can return it by email. To meet this deadline, the completed form must reach the Home Office by 30 June 2021.
Will the Home Office accept late EUSS applications from Zambrano carers?
Yes. In the Consent Order, [ii] the Home Office agreed that they will accept Zambrano carer EUSS applications for a specified period running from publication of the outcome of her Zambrano reconsideration of Appendix EU. The Home Office will announce this period, but it will be at least 6 weeks. We do not know when the Home Office will complete their Zambrano reconsideration of Appendix EU. But it is very unlikely to be before the Court of Appeal has decided the case.
This means that missing the 30 June 2021 deadline will not affect your chances of getting leave to remain as a Zambrano carer under EUSS. But it will mean that your derivative right to reside under the EEA Regulations ends on 30 June 2021 and may affect your rights until that application is decided. This is important if you do not have leave to remain; it is best to apply by 30 June 2021 (see below).
What will happen to my Zambrano EUSS application?
The Home Office has suspended decisions on Zambrano cases that are affected by the Akinsanya judgment, until she has reconsidered Appendix EU see Consent Order. [iii] We do not know when the Home Office will complete the reconsideration. It is very unlikely she will do this before the Court of Appeal has made its decision in Akinsanya. But, the Home Office has agreed not to make any decisions on EUSS applications from Zambrano carers until that process is complete. This means that an application cannot be refused during this period of reconsideration.
What if I already have another form of limited leave to remain?
If you have limited leave to remain which expires after 30 June 2021, you have the right to make a late application under Appendix EU at any time before your limited leave expires.[iv]
This means that if you have 30 months leave to remain under Appendix FM you can make the EUSS Zambrano application before the expiry of that leave, and this will not affect the decision on it.
If you have a pending application to extend your limited leave which has not been finally determined, then under the Consent Order your right to make a late application continues until that extension ends. This which will be when the application is decided or, if it is refused with a right of appeal, when the appeal is decided. [v]
But you can make an EUSS Zambrano application at any time, you do not have to wait until towards the end of your limited leave to remain. If possible, you should seek advice as soon as possible about when you should make any EUSS Zambrano application.
I have a pending application under Appendix FM – can I make an EUSS application?
The Home Office has agreed in the Consent Order[vi] that Zambrano carers can have Appendix FM and EUSS applications pending at the same time, as long as both applications are based on the same circumstances, for example, as the primary carer of a British citizen.
Also, under Home Office Guidance, making an EUSS application does not affect any other kind of human rights application (eg for leave outside the rules) that you have already made, or a pending asylum claim. [vii]
I currently have no leave to remain – what about me?
It is important to make an EUSS application by 30 June 2021, if at all possible. Making an application by 30 June 2021 automatically extends your right to reside under the Immigration (European Economic Area) Regulations 2016 (EEA Regulations). [viii] This continues until the Home Office decides your application and, if they refuse it, until any appeal is finally decided. During this time, you will continue to have the right to reside, and to work in the UK. Your stay will be lawful which may matter, for example, if you later apply to naturalise as a British citizen.
If you miss the 30 June 2021 deadline, you have the right to make a late EUSS application (see above). The Home Office is considering issuing people who make a late application with a certificate of application confirming their entitlement to work, study and rent a place to live, until final determination of your Zambrano application, see Consent Order. [ix]
If you are a Zambrano carer with no leave to remain and you miss the 30 June 2021 deadline and you are then encountered by Immigration Enforcement, under the Consent Order you should be identified as a person eligible to make an application as a Zambrano carer and directed to do so. You will be given a written notice and must make an application within the time period specified, normally within 28 days of the date of the written notice. [x]
Can I work legally after 30 June 2021?
If you have limited leave to remain with no prohibition on working, then you can work legally. Making a Zambrano EUSS application does not affect this. If your application is ultimately successful, that will not have a prohibition on working either.
If you are a Zambrano carer who does not have limited leave, but you made your Zambrano EUSS application by 30 June 2021 and it has not been decided (or your appeal against the refusal has not been decided), then you have a right to work. This is because you have a derivative right to reside in the UK and so section 15 of the Immigration, Asylum and Nationality Act 2006 does not apply to you. You can prove this right with your certificate of application.
If you do not have limited leave to remain and you did not make your Zambrano EUSS application by 30 June 2021, then you do not have a right to reside and therefore you cannot be legally employed by another person. [xi] There is no legal bar on such a person being self-employed, unless this is prohibited by conditions of their immigration bail.
Am I eligible for universal credit?
If you have limited leave to remain with no prohibition on recourse to public funds, then you are eligible for universal credit on the same terms as a British citizen. Making a Zambrano EUSS application does not affect this. If the Zambrano EUSS application is eventually granted (after the Home Office has reconsidered Appendix EU) and you are given ‘settled status’ because you have been a Zambrano carer for more than 5 years, then your eligibility for benefits will not change.
But, if you are eventually given only ‘pre-settled status’, this kind of leave to remain may not count as eligibility for universal credit. Under the current Universal Credit Regulations it does not count, but a case before the Supreme Court called Fratila may lead to a change in this law.
If I make a Zambrano EUSS application, am I eligible for free NHS treatment
Yes. A person with a pending EUSS application is not chargeable for NHS treatment:
regulation 13A(1) of the NHS (Charges to Overseas Visitors) Regulations 2015 (as amended by S.I. 2020/1423). If the application is granted then any charges recovered for services from the date of the EUSS application must be repaid.
However, if the EUSS application is refused then charges must be made for services provided after the date of application (unless the person is exempt for another reason): reg 13A(4).
Anything else I should know?
There are reports across the sector that EUSS phone lines and services are extremely busy at the moment and many are struggling to get forms sent out to them either by post or email. Don’t panic. Continue to call regularly until you are able to get forms sent out to you either by post or email. As you can see from the above, if you receive your form and send it back to the Home Office after the deadline, it will still be considered as a valid application. The fact that the application is made late will not affect its prospects of success. Please remember that it can be important to seek legal advice before making any immigration application.
[i] Paragraph (g) of the Consent Order dated 17 June 2021 (appended to the judgment).
[ii] Paragraph (e) of the Consent Order dated 17 June 2021 (appended to the judgment).
[iii] Paragraph (b) of the Consent Order dated 17 June 2021 (appended to the judgment).
[iv] Paragraph (a)(v) of the definition of ‘required date’ in Annex 1 to Appendix EU.
[v] Section 3C Immigration Act 1971.
[vi] Paragraph (d) of the Consent Order.
[vii] Home Office EUSS Guidance p. 63
[viii] Regulation 4 of the Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020.
[ix] Paragraph (h) of the Consent Order dated 17 June 2021 (appended to the judgment).
[x] Paragraph (i) of the Consent Order.
[xi] section 15 of the Immigration, Asylum and Nationality Act 2006.