Following the Supreme Court Judgement in Patel v Secretary of State for the Home Department  UKSC 59 (16 December 2019), Home Office Policy Guidance, Derivative rights of residence, published on 2nd May 2019 should no longer continue in existence in the public domain in its current form.Continue reading
The Supreme Court recently published its judgement in Patel v Secretary of State for the Home Department  UKSC 59 (16 December 2019).
Whether the application was submitted prior to the recent Home Office Guidance which came into effect on 2 May 2019 or thereafter, Zambrano derivative residence card applications relying on the 2016 EEA Regulations, are being automatically refused. This is on the basis that there is an Article 8 alternative route application by reference to the Immigration Rules/Appendix FM.
In practice, the indicators are that for cases caught by the policy guidance, no matter how well prepared the “Zambrano” application is or whether the applicant appears to fully satisfy the requirement of the Regulations, it will be refused.
A recent blog post of 7 May 2019 sets out the effect of the Guidance: “Home Office to refuse Zambrano applications under EEA Regs if Appendix FM/Article 8 alternative available”
Current form of refusals
Upon receiving the refusal decision, applicants shouldn’t expect engagement with any prior submissions put forward, for example as to why the policy guidance might be grounded on an erroneous interpretation of Patel v SSHD  EWCA Civ 2028 (13 December 2017, nor any issues on unfairness, etc.
Refusal decisions are to the following effect:
“Your application has been refused for the reasons set out in the enclosed notice.
You are applying on the basis that you are the primary carer of Miss……….
A 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(ECHR).
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 of a person has no other means to remain lawfully in the UK.
Your application is refused for the following reasons:
• (Since your most recent refused application in which Appendix FM was considered, there have been significant changes in your circumstances and it is open to you to re-apply under the UK’s domestic immigration law)
• (You have previously been granted LTR under the UK’s domestic immigration law. As your circumstances have not changed, you are invited to re-apply to continue on the route to settlement in the UK)
You have a right of appeal against this decision under regulation 36 of the 2016 Regulations.
This appeal may be brought before the First -tier Tribunal(Immigration and Asylum Chamber(IAC)) while you are in the UK and may continue while you are outside of the UK if necessary. You have 14calender days from the date this decision was sent to appeal.
If you do not wish to appeal but consider that you have further evidence to prove that you have a right of residence, you can make a further application”.
Patel before the Supreme Court
It is not apparent currently how correct the Home Office are in relying upon this guidance, which is quite recent. Patel was appealed to the Supreme Court and it is understood that the appeal was heard on 7 May 2019 and judgement is awaited. The new Guidance was published on 2 May 2019, only a few days before the appeal was heard. If the Supreme Court judgment does not bear upon the effect of the new Guidance, then no doubt some interesting litigation is very likely to ensue in future.
Meanwhile, the following may be the options available following receipt of a refusal decision:
• appeal the refusal decision timely, raising effective grounds of appeal thereby preserving the continuing right to work granted by the Certificate of Application. Whilst awaiting listing of the appeal hearing date, re-visit consideration of other options carefully without the pressures of needing to meet any deadlines.
• appeal the decision and argue that the Home Office interpretation of Patel as per the construction in their Guidance is incorrect, etc(but also provide reasons why resort has not been had to Appendix FM and why a fee waiver application cannot be made).
• appeal the refusal decision but potentially be met with a dismissal of the appeal by the Tribunal on the basis that the effect of the Patel case as interpreted by the Home Office is correct.
• submit an application to the Home Office relying on Appendix FM/Article 8 but apply for a few waiver, providing relevant documentation and information in this regards.
• submit an application to the Home Office relying on Appendix FM/Article 8 and provide the relevant Home Office application fees and NHS Surcharge
• consider judicial review proceedings, if the given right of appeal is not an adequate or sufficient remedy having regard to the issues in play
Zambrano claimants applying under the Immigration (European Economic Area) Regulations 2016 are being railroaded by the Home Office. Access to a derivative right of residence is being severely restricted, if not shut altogether.
A person may qualify for a derivative right of residence as the primary carer of a British citizen child or British dependent adult, where requiring the primary carer to leave the UK would force that British citizen to leave the European Economic Area (EEA), ie a Zambrano case. The 2016 EEA regulations do not impose an age limit on the relevant British citizen who is dependent upon their primary carer
Quietly but determinedly the UK Government continues to detain EEA nationals subject to deportation. Some are deported, not on the basis of any crime committed in the UK but by reliance upon a previous adverse criminal history in the country of origin. Removal directions follow shortly after detention, even if the EEA national has a pending appeal yet to be heard in the immigration Tribunal.
In Wandzel, R (On the Application Of) v Secretary of State for the Home Department (Rev 1)  EWHC 1371 (Admin), the Claimant, a Polish EEA national subject to deportation, sought to argue that following the decision of the Supreme Court in Kiarie and Byndloss, the Regulation 33 certification applied to his case was unlawful.
On the facts of his case, the argument failed to properly lift off the ground with the Administrative Court seemingly making short shrift of them, holding that certification was not unlawful.