Carers of British citizens - Zambrano rules
29 May 2019
It sometimes happens that the Home Office is accused of delaying changing the rules in response to court judgements. In some cases decisions of the Upper Immigration Tribunal or the higher courts create changes in the law which the Home Office has to incorporate into its published rules and on occasion it has been accused of dragging its feet - rather as though it was unwilling to incorporate changes it did not like.
But sometimes the boot is on the other foot.
In a case heard a while ago in 2017 called "Patel" the Court of Appeal analysed the situation of non-EEA nationals who are primary carers of their relatives who are British citizens. Such carers are sometimes referred to as "Zambrano" carers; the reason for this being that their immigration status was created under EU law by the European Court of Justice (ECJ) in a case of that name.
Outcomes under European law are sometimes surprising, and this was a good case in point. The ECJ decided - in briefest terms - that a child who is a citizen of the EEA country in which they are living holds strong rights under EU law. And if their parents are non-EEA nationals but they are living with and caring for the child then the parents get immigration rights as well. If the parents could not stay in the EEA country then highly presumably the child could not stay either, and this would infringe the child’s rights.
There is, you might say, some logic in this reasoning.
The law has been changed and refined a little since the Zambrano judgement, which is a few years old now. According to the Home Office’s own published EEA Immigration Regulations (which as far as the Home Office is concerned are "the law") a person is entitled to immigration leave under EU law "derivative rights" if they are a "primary carer" of a British citizen of whom they are a direct relative or guardian and - a very important proviso - if the carer had to leave the UK then the British citizen would have to leave as well. And the Regulations envisage that the British citizen may be either a child or an adult.
The key to understanding this seemingly counterintuitive position is that a British citizen is also an EEA citizen (at the moment at any rate) and a British citizen in living in the UK has, in this context, EU rights.
But, as in most areas, the Home Office publishes policy guidance in conjunction with the rules. The relationship between rules and policy guidance is sometimes an uneasy one. Rules have legally binding effect: they have been agreed to by Parliament. But policy guidance has not been agreed to by anybody and it doesn’t.
But in this case the situation is complicated. In the "Patel" case in the Court of Appeal Lord Justice Irwin, during the course of a detailed and learned analysis, made what might seem like a throwaway comment:
"The Zambrano principle cannot be regarded as a back-door route to residence by… non-EU citizen parents."
But the implications of these words, if they really should be given the effect that they appear to have - could be profound. They could mean that a person should not apply for Zambrano/carer leave if they could apply for any other kind of immigration leave. But this theme was not developed, and we are left wondering whether that was what it meant. Certainly, the wording was not crystal clear.
But the Home Office was in no doubt about this. The most recent version of the relevant policy guidance tell us that person a applying for derivative rights under Zambrano principles should be refused if he or she:
"has never made an application under Appendix FM to the Immigration Rules or any other Article 8 ECHR claim, where that avenue is available".
In other words if somebody could apply for a family visa under the English immigration rules or some other sort of application under human rights law they should try that first before applying under Zambrano principles.
The confusion is that the policy guidance appears to reflect the Court of Appeal’s opinion, but is harsher than the EEA Regulations, which are supposed to constitute the law, and thus the relationship between rules and policy guidance is now rather mixed up.
We suspect that there may be further judicial interpretation of this situation; things are very unclear at the moment. In the meantime it may be best to "play it safe" and follow the Home Office’s opinion.
But if you are involved in this kind of issue you are certainly well advised to consult a good lawyer.