A parent may have left the UK or been removed, yet have a British child here remaining with the other parent. Even without a continuing relationship with the UK resident parent, the parent abroad may still wish to continue to have a family life with their British child and therefore  want to apply for entry clearance to come to   the UK.

A parent may be here with irregular status yet have  children who are British residing in the UK  or who have resided here continuously for 7years and are still under 18years of age. That parent may want to remain here with them and wish to submit an application for leave to remain.

A parent may also wish to switch from being a student and apply for leave to remain here under a different category where they have a child who is British following on from a relationship, for example, with a British citizen or a person who is settled here.

Several options are open, however   the different avenues also have their advantages and disadvantages worthy of consideration prior to submitting   an application.

DERIVATIVE RESIDENCE CARD APPLCIATIONS- “ZAMBRANO” APPLICATIONS

The ECJ judgment in the, case of Ruiz Zambrano (C34/09), 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. This means 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.

A primary carer of a British citizen will qualify for a derivative right of residence under Regulation 15A(4A) of the EEA Regulations where they satisfy the conditions set out in that paragraph. The conditions are that the applicant is the primary carer of a British citizen who is residing in the UK, and would be unable to reside in the UK or in another EEA state if their primary carer were required to leave the UK.

A primary carer is defined in regulation 15A(7) as a direct family member or legal guardian of the person from whom they would claim a derivative right, and the person who:

1. has primary responsibility for that person’s care, or
2. shares the responsibility for that persons care equally with one other person who is not an exempt person.

Therefore an application which meets the criteria for a derivative right of residence may qualify for a right of admission to the UK under amended Regulation 11 of the 2006 EEA Regulations; a right to an EEA family permit under amended Regulation 12 of the 2006 Regulation; and a right to a derivative residence card under regulation 18A of the Regulations.

In country applicants for a Directive Residence card are required to submit   “DRF1” application Form.

The relevant Home Office Guidance is, “Derivative rights of residence – Ruiz Zambrano cases, 12th December 2012, 21/2012”.

FAMILY LIFE AS A PARENT OF A CHILD IN THE UK – ENTY CLEARANCE APPLICATION

The most relevant Instructions Guidance policies are:

• Immigration Directorate Instruction Family Migration: Appendix FM Section 1.0a Family Life (as a Partner or Parent): 5-Year Routes, August 2015;
• Immigration Directorate Instruction Family Migration: Appendix, FM, Section 1.7A, Adequate, Maintenance & Accommodation, August 2015

To meet the eligibility requirements for entry clearance as a parent of a child in the UK, all of the requirements in paragraphs E-ECPT.2.1. to 4.2. must be met. The applicant must be outside the UK and must be aged 18 years or over.

The Relationship requirements, Financial requirements and English language requirement must be met.

If the applicant meets the requirements for entry clearance as a parent they will be granted entry clearance for an initial period not exceeding 33 months, and subject to a condition of no recourse to public funds.

If the applicant does not meet the requirements for entry clearance as a parent the application will be refused.

FAMILY LIFE AS A PARENT OF A CHILD IN THE UK – LEAVE TO REMAIN APPLICATION

Appendix FM provides:

“EX.1. This paragraph applies if

• (a)

• (i) the applicant has a genuine and subsisting parental relationship with a child who-

• (aa) is under the age of 18 years, or was under the age of 18 years when the applicant was first granted leave on the basis that this paragraph applied;

• (bb) is in the UK;

• (cc) is a British Citizen or has lived in the UK continuously for at least the 7 years immediately preceding the date of application ;and

• (ii) it would not be reasonable to expect the child to leave the UK; or
• (b) the applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, settled in the UK or in the UK with refugee leave or humanitarian protection, and there are insurmountable obstacles to family life with that partner continuing outside the UK.

EX.2. For the purposes of paragraph EX.1.(b) “insurmountable obstacles” means the very significant difficulties which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could not be overcome or would entail very serious hardship for the applicant or their partner”.

And Appendix FM also provides:

“Section R-LTRPT: Requirements for limited leave to remain as a parent

R-LTRPT.1.1. The requirements to be met for limited leave to remain as a parent are-

• (a) the applicant and the child must be in the UK;

• (b) the applicant must have made a valid application for limited or indefinite leave to remain as a parent or partner; and either

• (c)

• (i) the applicant must not fall for refusal under Section S-LTR: Suitability leave to remain; and

• (ii) the applicant meets all of the requirements of Section ELTRPT: Eligibility for leave to remain as a parent, or

• (d)

• (i) the applicant must not fall for refusal under S-LTR: Suitability leave to remain; and

• (ii) the applicant meets the requirements of paragraphs E-LTRPT.2.2-2.4. and E-LTRPT.3.1-3.2.; and

• (iii) paragraph EX.1. applies”.

A successful application  that meets the requirements of   R-LTRPT.1.1. (a) to (c) leads to the 5year Route to settlement.     The 5-year route as a partner or parent is for those who meet all of the suitability and eligibility requirements of the Immigration Rules at every stage.  Applications for leave on the 5-year routes to settlement can be made from outside the UK or in the UK. Overseas applicants need to apply for entry clearance as a partner on forms VAF4A and VAF4A Appendix 2, or as a parent on forms VAF4A and VAF4A Appendix 5. An applicant in the UK may apply for the 5-year partner route on form FLR(M), or the 5-year parent route on form FLR(FP).  Appendix FM must be read together with Appendix FM-SE, which sets out the specified evidence that must be submitted with an application, and Appendix O, which sets out the English language tests approved for an application for entry clearance or limited leave to remain as a partner or parent. An applicant must provide all of the documents specified in Appendix FM-SE that are relevant to their application under Appendix FM. The grant of leave to remain under the  10year  route  is  subject to a condition of no recourse to public funds  To qualify for  settlement, the  applicant must have demonstrated sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom in accordance with the requirements of Appendix KoLL of the  Rules.

In an in country application, an applicant who fails to meet certain of the eligibility requirements their application under the 5-year route will be refused, and consideration given to whether they qualify under the 10-year partner, parent or private life routes.

A successfully application  that meets the requirements of   R-LTRPT.1.1. (a), (b) and (d) leads to the 10year Route to settlement. The 10-year route as a partner or parent is only applicable to in-country applications, is for those who meet all of the suitability requirements, but only certain of the eligibility requirements as a partner or parent where paragraph EX.1. of Appendix FM is also met.

Paragraph EX.1. is not an exception to the Rules, but to certain eligibility requirements of the 5-year partner and parent routes under Appendix FM. It  is considered to  provide  the basis on which an applicant in the UK who does not meet all of the eligibility requirements of the 5-year partner or parent route can qualify for leave to remain under the Rules on the basis of their family life in the UK. An applicant in the UK can  apply directly for the 10-year partner, parent or private life routes using form FLR(FP),  where  they know they cannot meet certain of the eligibility requirements of the 5-year routes.

From 6 April 2015, the Immigration Rules contain paragraph GEN.2.3(1) and (2) of Appendix FM and paragraph 276A01(1) and (2), which provide that, where an applicant in the UK has been on temporary admission or temporary release for a continuous period of more than 6 months at the date of application qualifies for leave under the 10-year partner, parent or private life routes or for leave outside the Rules on the basis of exceptional circumstances, they may be granted leave to enter rather than leave to remain.

The grant of leave to remain under the 10year route is also subject to a condition of no recourse to public funds however   there is a possibility of being able to able to apply to lift the condition where the Secretary of State considers that the person should not be subject to such a condition. To qualify for settlement , the applicant must have demonstrated sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom in accordance with the requirements of Appendix KoLL of these Rules.

Option A- Leave To Remain Application – Five year Route to Settlement :

The most relevant Home Office Instruction Guidance policies are:

• Immigration Directorate Instruction Family Migration: Appendix FM Section 1.0a Family Life (as a Partner or Parent): 5-Year Routes, August 2015.
• Immigration Directorate Instruction Family Migration: Appendix, FM, Section 1.7A, Adequate, Maintenance & Accommodation, August 2015.

To qualify for limited leave to remain as a parent all of the requirements of paragraphs E-LTRPT.2.2. to 5.2. must be met.

Further the applicant meets all of the requirements of Section ELTRPT: Eligibility for leave to remain as a parent and the applicant must not fall for refusal under Section S-LTR: Suitability leave to remain.

Relationship requirements:

The child of the applicant must be-

(a) under the age of 18 years at the date of application, or where the child has turned 18 years of age since the applicant was first granted entry clearance or leave to remain as a parent under this Appendix, must not have formed an independent family unit or be leading an independent life;

(b) living in the UK; and

(c) a British Citizen or settled in the UK; or

(d) has lived in the UK continuously for at least the 7 years immediately preceding the date of application and paragraph EX.1. applies.

Either-

(a) the applicant must have sole parental responsibility for the child or the child normally lives with the applicant and not their other parent (who is a British Citizen or settled in the UK);or

(b) the parent or carer with whom the child normally lives must be-

(i) a British Citizen in the UK or settled in the UK;

(ii) not the partner of the applicant (which here includes a person who has been in a relationship with the applicant for less than two years prior to the date of application); and

(iii) the applicant must not be eligible to apply for leave to remain as a partner under this Appendix.

(a) The applicant must provide evidence that they have either-

(i) sole parental responsibility for the child, or that the child normally lives with them; or

(ii) direct access (in person) to the child, as agreed with the parent or carer with whom the child normally lives or as ordered by a court in the UK; and

(b) The applicant must provide evidence that they are taking, and intend to continue to take, an active role in the child’s upbringing.

Immigration status requirement:

The applicant must not be in the UK-

(a) as a visitor; or

(b) with valid leave granted for a period of 6 months or less, unless that leave was granted pending the outcome of family court or divorce proceedings;

The applicant must not be in the UK –

(a) on temporary admission or temporary release, unless the applicant has been so for a continuous period of more than 6 months at the date of application and paragraph EX.1.applies; or

(b) in breach of immigration laws (disregarding any period of overstaying for a period of 28 days or less), unless paragraph EX.1. applies.

Financial requirements:

The applicant must provide evidence that they will be able to adequately maintain and accommodate themselves and any dependents in the UK without recourse to public funds, unless paragraph EX.1. applies.

English language requirement:

The applicant has to meet the English requirement unless they are exempt.

If the applicant meets the requirements in paragraph R-LTRPT.1.1. (a) to (c) for limited leave to remain as a parent the applicant will be granted limited leave to remain for a period not exceeding 30 months, and subject to a condition of no recourse to public funds, and they will be eligible to apply for settlement after a continuous period of at least 60 months with such leave or in the UK with entry clearance as a parent under paragraph D-ECPT.1.1. If the applicant does not meet the requirements for limited leave to remain as a parent the application will be refused.

Option B- Leave To Remain Application – Ten year Route to Settlement:

The most relevant Home Office Instructions Guidance policy is  :

• Immigration Directorate Instruction Family Migration: Appendix FM Section 1.0b Family Life (as a Partner or Parent) and Private Life: 10-Year Routes, August 2015-This guidance must be used by decision makers considering whether to grant leave to remain on a 10-year route to settlement following a valid Human Rights application or claim for leave to remain on the basis of family life as a partner or parent or on the basis of private life in accordance with the some specified parts of the Immigration Rules and Appendix FM, or where considering whether to grant leave to remain outside the rules on the basis of exceptional circumstances.

The applicant must meets the requirements of paragraphs E-LTRPT.2.2-2.4. and E-LTRPT.3.1-3.2.; and paragraph EX.1. applies.

If the applicant meets the requirements in paragraph R-LTRPT.1.1. (a), (b) and (d) for limited leave to remain as a parent they will be granted leave to remain for a period not exceeding 30 months and subject to a condition of no recourse to public funds unless the Secretary of State considers that the person should not be subject to such a condition, and they will be eligible to apply for settlement after a continuous period of at least 120 months with such leave, with limited leave as a parent under paragraph D-LTRPT.1.1., or in the UK with entry clearance as a parent under paragraph D-ECPT.1.1. If the applicant does not meet the requirements for limited leave to remain as a parent the application will be refused.

Option C – Paragraph 276ADE of the Immigration Rules :

Parents may seek to rely upon Paragraph 276ADE   of the Immigration Rules placing reliance upon the 7year rule as a basis of stay where they apply together as a family along with the qualifying child:

“Requirements to be met by an applicant for leave to remain on the grounds of private life

276ADE (1). The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:

(i) does not fall for refusal under any of the grounds in Section S-LTR 1.2 to S-LTR 2.3. and S-LTR.3.1. in Appendix FM; and

…………

(iv) is under the age of 18 years and has lived continuously in the UK for at least 7 years (discounting any period of imprisonment) and it would not be reasonable to expect the applicant to leave the UK…”

Limited leave to remain on the grounds of private life in the UK may be granted for a period not exceeding 30 months provided that the Secretary of State is satisfied that the requirements in paragraph 276ADE(1) are met or, in respect of the requirements in paragraph 276ADE(1)(iv) and (v), were met in a previous application which led to a grant of limited leave to remain under this sub-paragraph. Such leave shall be given subject to a condition of no recourse to public funds unless the Secretary of State considers that the person should not be subject to such a condition.

Where an applicant does not meet the requirements in paragraph 276ADE(1) but the Secretary of State grants leave to remain outside the rules on Article 8 grounds, the applicant will normally be granted leave for a period not exceeding 30 months and subject to a condition of no recourse to public funds unless the Secretary of State considers that the person should not be subject to such a condition.

Limited leave to remain on the grounds of private life in the UK is to be refused if the Secretary of State is not satisfied that the requirements in paragraph 276ADE(1) are met.

CONSIDERATIONS- ADVANTAGES AND DISADVANTAGES

 

• Right to work

A person who submits a valid application for a derivative residence card will be issued with a certificate of application which will facilitate their taking employment while their application is under consideration.

Where an applicant applies under the parent route,  having no leave to remain and an  accompanying right to work, they are unable to work unless and until their application is determined positively.

• Settlement :

The 5 or 10year parent route can lead to settlement where the eligibility and qualifying requirements are met.

The Home Office generally consider that unless there are truly exceptional reasons, the expectation is that applicants should serve a probationary period of limited leave before being eligible to apply for indefinite leave to remain , if they meet the requirements. The Home Office however accept  that there may be rare cases in which a longer period of leave is considered appropriate, either because it is clearly in the best interests of a child (and any countervailing considerations do not outweigh those best interests), or because there are other particularly exceptional or compelling reasons to grant leave for a longer period (or settlement). There is thus discretion to grant a longer period of leave where appropriate. In all cases the onus is on the applicant to provide evidence as to why they believe that a longer period of leave (or ILR) is necessary and justified on the basis of particularly exceptional or compelling reasons.

As regards a Zambrano  application, the right of residence is not a right conferred by Directive 2004/38/EC but is 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‟). Therefore 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 rely on their status as a basis for bringing other family members to the UK under the Regulations(expect in the specific case of dependants); acquire permanent residence in the UK; rely on the public policy protection against removal or deportation from the United Kingdom that is given to those exercising free movement rights.

There is thus no right to permanent residence for persons claiming to have a derivative right of residence.

Derivative residence cards will ordinarily be issued for a period of five years.

Home Office Guidance provides that in certain circumstances, caseworkers may issue for an alternative period depending on the individual facts of the case. For example, where a primary carer is claiming a derivative right of residence for their child who is due to reach the age of majority in 3 years‟ time caseworkers should only issue a document for three years.

• Qualifying children:

Only British children can enable a parent to place reliance upon the judgment in Zambrano.

It is however is also important to note that those with primary responsibility of a dependant British adult may also place reliance upon Zambrano. The Home Office consider that cases where the British citizen is at, or over the age of 18, then the level of evidence required to demonstrate primary and shared responsibility will be significantly higher than in cases involving children. This is because it can generally be assumed an adult has the capacity to care for their own daily needs unless there are reasons such as a severe physical or mental disability which would prevent this. In order to demonstrate primary/shared responsibility for adults, the majority of the care must be provided by the primary carer(s). Evidence from the NHS/local authority/private care may be submitted to support this. Appropriate medical evidence must also be presented that confirms the British citizen is, and will remain, wholly dependent upon the primary carer. Details must be provided as to whether any other sources of care are available and what the predicted effect would be on the British citizen if the primary carer was no longer able to care for them. The Home office consider that such cases are likely to be rare and will require consideration on an individual basis.

The relevant Home Office Guidance in relation to the 10year route to settlement   mentioned above states :

“This section applies to applications for leave to remain and further leave to remain as the parent of a child in the UK, and where the child:

 is under the age of 18 years at the date of application; and

 is living in the UK; and

 is a British Citizen; or

 has lived in the UK continuously for at least the 7 years immediately preceding the date of application”

The category of qualifying children is therefore  wider  than that  in  a Zambrano application however the same Guidance  states:

“The decision maker should note that a parent wishing to remain in the UK on the basis of their settled child who has NOT lived in the UK continuously for at least 7 years immediately preceding the date of application, cannot meet the requirements of the parent routes. The child living in the UK must either be British, or have lived in the UK continuously for at least the last 7 years, for the parent to meet this requirement of these rules”.

• The “ reasonableness “ test in Exception 1 and the test of whether the British citizen will be forced to leave the EEA if the primary carer was forced to leave:

The Zambrano Home Office Guidance provides that even where there is evidence of primary and shared responsibility, evidence to show why the British citizen would be forced to leave the EEA (for example because they cannot access alternative care in the UK) is still required. The Home Office consider that if there is another person in the UK who can care for the British citizen, then a derivative residence card must be refused on the basis that such a refusal would not result in the British citizen being forced to leave the EEA. Caseworkers are required to assess whether there is another direct relative or legal guardian in the UK who can care for the British citizen and, in the case of a child, who has already had established contact. In making this assessment, the burden of proof remains on the applicant and the standard of proof is the balance of probabilities. This means the onus is on the applicant to demonstrate that their removal would force the British citizen to leave the EEA. If there is no information to demonstrate this, then home office Caseworkers are required to make further enquiries with the applicant as to the status or whereabouts of the other parent in the case of a child, or alternative care provisions in the case of a British citizen adult.

The Home Office state that examples of when it may be appropriate to issue a derivative residence card to a primary carer would be where:

• there are no other direct relatives or legal guardians to care for the
• British citizen; or
• there is another direct relative or legal guardian in the UK to care for
• the British citizen but there are reasons why this carer is not suitable; or
• in the case of an adult British citizen, there are no alternative care
• provisions available in the UK.

The home office also consider that an example of when a person may be considered unsuitable to care for a child would be where there are child protection issues which would prevent this child being placed with this particular relative/legal guardian- for example as a result of a particular criminal conviction or because of findings in family law proceedings. Another example might be where the person in question would be unable to care for the child due to a physical or mental disability.

A lack of financial resources or an unwillingness to assume care responsibility would not, by itself, be sufficient for the primary carer to assert that another direct relative or guardian is unable to care for a British citizen. Caseworkers are therefore directed to start from the assumption that where there is another direct relative or legal guardian in the UK, that they can care for the British citizen unless there is sufficient evidence to the contrary.

Paragraph EX.1. within Appendix FM  is not a standalone requirement, but where it applies it provides an exception to meeting certain eligibility requirements of the 5-year parent route. Applicants being considered under the 10-year parent route must meet the requirements in paragraph EX.1. of Appendix FM.

The Home Office consider that the criteria set out in paragraph EX.1.(a) reflects the duty in section 55 of the Borders, Citizenship and Immigration Act 2009 to have regard to the need to safeguard and promote the welfare of children who are in the UK,  ie their best interests. The Home Office are of the view  that the  requirements in paragraph EX.1.(a) and in paragraph 276ADE(1)(iv) reflect the duty in section 55 of the Borders, Citizenship and Immigration Act 2009 to have regard to the need to safeguard and promote the welfare of children who are in the UK, , as reflected in case law, in particular, ZH (Tanzania).

Under paragraph EX.1.(a), the decision maker must assess whether the applicant has a genuine and subsisting parental relationship with a child under the age of 18 who is in the UK and is a British Citizen or has lived in the UK continuously for at least the 7 years immediately preceding the date of application, and whether it is reasonable to expect the child to leave the UK, and must carefully consider all of the information provided in the application.

Relevant Home Office Guidance  as regards the 10year route to settlement   considers that save in cases involving criminality, the decision maker must not take a decision in relation to the parent or primary carer of a British Citizen child where the effect of that decision would be to force that British child to leave the EU, regardless of the age of that child. This is stated to reflect the European Court of Justice judgment in Zambrano. Where a decision to refuse the application would require a parent or primary carer to return to a country outside the EU, the case must always be assessed on the basis that it would be unreasonable to expect a British Citizen child to leave the EU with that parent or primary carer. In such cases it is considered  that it will usually be appropriate to grant leave to the parent or primary carer, to enable them to remain in the UK with the child, provided that there is satisfactory evidence of a genuine and subsisting parental relationship. In cases where a decision to refuse the application would require a parent or primary carer to return to a country within the EU, it may be possible to require the child to return or go there with that person. However, consideration must still be given to whether it would be reasonable to expect the child to leave the UK.

For non – EEA children,  the  requirement is to  consider whether, in the specific circumstances of the case, it would be reasonable to expect the child to live in another country. Relevant considerations are likely to include: whether there would be a significant risk to the child’s health; whether the child would be leaving the UK with their parent(s); the extent of wider family ties in the UK ; whether the child is likely to be able to (re)integrate readily into life in another country; any country specific information, including as contained in relevant country guidance; other specific factors raised by or on behalf of the child.

In relation  to the  parent route, parents  may highlight the differences in the quality of education, health and wider public services or in economic or social opportunities between the UK and the country of return and argue that these would work against the best interests of the child if they had to leave the UK and live in that country. The Home Office  view is  that other than in exceptional circumstances, this will not normally be a relevant consideration, particularly if the parent(s) or wider family have the means or resources to support the child on return or the skills, education or training to provide for their family on return, or if Assisted Voluntary Return support is available.

It can thus be seen that with such a stringent approach in relation to both Zambrano and Appendix FM applications, it is no surprise why in practice derivative residence applications and those applicants with children relying upon the “ 7year Rule” are usually refused by the home office.

• Overstaying:

Applicants   submitting a derivative residence application, may do so even where they have no leave to remain, however parents applying under the 5year route to settlement are unable to place successful reliance   upon this route apply where they are overstayers. When considering refusing an application on the grounds that it was made by an applicant who has overstayed by more than 28 days, the home office is  required to consider any evidence of exceptional circumstances which prevented the applicant from applying within the first 28 days of overstaying. A visitor who has overstayed (by any period of time) cannot qualify for the 5-year route.

• Suitability Requirements and General Grounds for Refusal:

These do not apply to Zambrano applications, however in considering all applications for entry clearance or leave to remain as a partner or parent the decision maker must consider whether the suitability requirements in Appendix FM of the Rules are met. If the applicant falls for refusal on the basis of suitability, the application will be refused. It is noteworthy that applicants applying as a partner or parent under Appendix FM under the 5year and 10year route to settlement are not subject to the General Grounds for Refusal, except for the provisions in paragraph 320(3), (10) and (11) which continue to apply to applications under Appendix FM as set out in the General Grounds for Refusal:

• Fees and the NHS Health Surcharge:

Applicants applying for a Derivative residence card need only provide the £65.00 fee required per applicant.

For those applying for entry clearance,   for leave to remain under the parent   route, substantial fees are required to be paid. For leave to remain applications, a fee of £649.00 per applicant is required to be submitted with Form FLR(FP).

Further, as from 6 April 2015, under the Immigration (Health Charge) Order 2015, applications for leave to remain under the 5-year  and 10year  partner and parent routes are subject to the immigration health charge of £500.00  in addition to the application fee, unless they are not required to pay the immigration health charge

• No Recourse to public funds:

The Immigration Rules approved by Parliament govern the no recourse to public funds policy in grants of leave made under the 10-year partner, parent and private life routes under the Rules and in grants of leave made outside the Rules under ECHR Article 8 on the basis of exceptional circumstances. Grants of leave under the 5-year partner or parent routes are always subject to a condition of no recourse to public funds. In all cases where limited leave is granted on a 10-year route as a partner or parent under Appendix FM; limited leave on the grounds of private life is granted under paragraph 276BE(1) or paragraph 276DG; or limited leave is granted outside the Rules on the basis of exceptional circumstances relating to family life under GEN.1.10-1.11. of Appendix FM or to private life under paragraph 276BE(2), leave will be granted subject to a condition of no recourse to public funds, unless the applicant meets the terms of the relevant Home Office Guidance regarding the 10year route to settlement. The condition of no recourse to public funds will not be imposed, or will be lifted, only where the applicant meets the requirements of paragraph GEN.1.11A of Appendix FM or paragraph 276A02 of the Immigration Rules. Whether to grant leave subject to a condition of no recourse to public funds, and whether to lift that condition where imposed, is a decision for the Home Office decision maker to make on the basis of the relevant above quoted   Guidance in relation to the 10year route to settlement. The Court of Appeal held in Sanneh & Ors v Secretary of State for Work and Pensions and Others [2015] EWCA Civ 49 that the right to reside under Zambrano arises on the date on which the Zambrano conditions are met. There is no need to wait until the point is reached where the Zambrano carer’s removal from the EU is imminent . Consequently, Zambrano carers like Ms Sanneh were entitled to mainstream welfare benefits by virtue of their right to reside until that right was deliberately excluded by the Social Security (Habitual Residence) (Amendment) Regulations 2012 (SI 2012/2587) which came into force on 8 November 2012. In brief the Court concluded that Member states are under an obligation to pay Zambrano carers who are in need and unable to work an amount that is sufficient to enable them to support themselves and their EU citizen child/children within the EU. In the UK, section 17 of the Children Act 1989 fulfils that obligation. Zambrano carers are not entitled to social assistance paid at the same level as that paid to EU citizens lawfully here. The levels of social assistance available to Zambrano carers in the UK, following the amendment to the habitual residence test, is not in breach of any requirement of EU law. Nor is it in breach of the Human Rights Act 1998 or the Equality Act 2010.

• Sole Parental Responsibility and Primary Responsibility:

A parent applying under Appendix FM   may show they have sole responsibility of the child and a parent placing reliance upon a Zambrano application is required to show they have primary responsibility.

As regards Zambrano applications, the decision maker considers whether an applicant has primary responsibility or shares equal responsibility with another person for that British citizen’s care. Primary or shared responsibility will generally be established where that child is living with the primary carer(s) and the majority of their care is being provided for by that primary carer(s). Home Office guidance states that evidence to demonstrate this responsibility can include custody/guardianship orders, or if this is not available, any additional evidence which shows:

• that the child lives with the primary carer(s) or spends the majority of
• their time there;
• that the primary carer(s) makes the day to day decisions for that child,
• for example decisions relating to their education or health; and
• that the primary carer(s) has financial responsibility for that child.

How this is evidenced will vary depending on the facts of the case, but the primary carer(s) may submit letters from the child’s school, GP or from a solicitor to demonstrate primary/shared responsibility

Sole parental responsibility having regard to Appendix FM may need to  be interpreted in line with the definition within  the Guidance relating  to  the 5year and 10year route to settlement. According to  the  Home Office,  sole responsibility means that one parent has abdicated or abandoned parental responsibility and the remaining parent is exercising sole control in setting and providing the day-to-day direction for the child’s welfare.  A parent who claims to have sole responsibility must provide evidence they have exercised this role since the other parent abdicated or abandoned their parental role. This may be over a period of several years or may be several months before an application. Some day-to-day responsibility (or decision-making) for the child’s welfare may be shared with others, for example, relatives or friends, for practical reasons.  As long as the applicant is ultimately responsible and answerable for the welfare of the child, this does not prevent the applicant from being a parent with sole responsibility within the meaning of the Immigration Rules. The  Guidance however warns that decision makers must not make a decision that would have the effect of denying a parent who has not abdicated or abandoned parental responsibility contact with that child. The decision maker must carefully consider each application and on a case by case basis. The burden of proof is on the applicant to provide satisfactory evidence that they meet the Rules.

Considerations of  “Normally lives with”;  “Person who the child normally lives with” and “Direct access”   are also set out within the said Guidance.

• Meeting Financial and Accommodation Requirements :

It is not a requirement in a Zambrano application that the applicant show that they can be maintained and accommodated without recourse to public funds. To qualify for entry clearance or leave to remain as a parent on the 5-year route to settlement, the applicant must meet the financial requirements. In order to meet the financial requirements the applicant must provide evidence that they will be able to adequately maintain and accommodate themselves and any dependants in the UK without recourse to public funds.

• English Language Requirement:

To qualify for entry clearance or leave to remain as a parent on the 5-year route to settlement the applicant must meet the English language requirement. This is not applicable in a Zambrano application. 

• Right of Appeal:

A person who is refused a document on the basis that they do not have a derivative right to reside will have an appeal under regulation 26(3A) where they have produced:

1. a valid national identity card issued by an EEA state or a passport and
2. an EEA family permit; or
3. proof that–
4. where the person claims to have a right under regulation 15A(4A), that he or she is the direct relative or guardian of a British citizen;
5. where the person claims to have a right under regulation 15A(5), that he or she is under the age of 18 and is the dependant of a person satisfying the criteria in (i).

Therefore, for example, an applicant mother who submits a full birth certificate showing the father’s detail but no evidence of the child’s entitlement to citizenship such as the father’s British passport or evidence of his settled status, then upon a refusal decision, there will be no right of   appeal.

From 6 April 2015, under changes made by the Immigration Act 2014, all applications for leave to remain under the 5 year and 10year year partner and parent and private routes which are refused (except as a bereaved partner) will attract a right of appeal on the basis that a human rights claim has been refused, regardless of whether the application was made at a time when the applicant had valid leave to remain.

In some cases however,  attracting a right of appeal does not equal to an in -country right of appeal if the application is refused and the decision is certified thus denying an in -country right of appeal.

• Article 8 considerations, Exceptional Circumstances, Compassionate Circumstances:

With a Zambrano application, the home office are most likely to neglect or refuse to consider Article 8 human rights considerations or any compassionate circumstance or Section 55 issues. Therefore although detailed submissions may be made the Regulation 15A application, the home office upon consideration and refusal may have no regard to them.

When an application falls for refusal under the Immigration Rules, the decision maker  is required to move on to a second stage and consider whether there are any exceptional circumstances on the basis of Article 8 that would warrant a grant of entry clearance or leave to remain outside the Immigration Rules  on Article 8 grounds because refusal would result in unjustifiably harsh consequences for the applicant or their family. Where a decision is to be made on entry clearance outside the Immigration Rules, the decision maker must refer details of the case to the Referred Casework Unit (RCU).

The Home Office Guidance on the 10year route to settlement  provides that compassionate factors are compelling compassionate reasons on a basis other than family or private life under Article 8, which might justify a grant of leave to remain outside the Immigration Rules, even though the applicant has failed to meet the requirements of the Rules and there are no exceptional circumstances in their case.  While exceptional circumstances on the basis of Article 8 must be considered in every case falling for refusal under the Rules, compassionate factors only need to be considered if they are specifically raised by the applicant.  Compassionate factors are, broadly speaking, exceptional circumstances, e.g. relating to serious ill health, which might mean that a refusal of leave to remain would result in unjustifiably harsh consequences for the applicant or their family, but not constitute a breach of Article 8.  Where an applicant is granted limited leave to remain on the basis of compassionate factors, the decision letter and associated status documentation clearly show that the grant has been given outside the Immigration Rules on the basis of compassionate factors, and should not indicate that the grant is on the basis of their family or private life.

• Length of time to consider applications:

As the rights claimed on the Zambrano basis do not stem directly from the Free Movement Directive, they are not subject to the normal 6 month timescales, but are considered “as soon as practicable”.

The current published customer service standards for processing applications for those applying for to remain on a temporary basis is stated to be 8weeks for postal applications. As the home office probably realise that   this time estimate is unrealistic in practise in most cases, they have qualified this time period to state that if there is a problem with the application or if it is complex, they will write to explain why it will not be decided within the normal standard. They state that they will write within the normal processing time for the 8 week standard and within 12 weeks for the 6 month standard.  For the home office to write on their own accord to applicants following an acknowledgment of the application and undertaking   of biometrics, rarely   happens and as such even applications relying upon Appendix FM are known these days to take considerably longer than 6months.

 CONCLUSION

Each case and application is different and therefore different consideration in play in each case will determine which route to take advantage of. Although the Home Office may seem to take some delight in almost routinely refusing Zambrano applications or those applications relying upon the “7year rule”, where there is a right of appeal, there is always some chance and hope that such cases may succeed on appeal.