The process by which the Home Office grants residence to migrant parents of British children may be indiscriminate and unlawful, according to at least one source.

A Zambrano carer is a person from a non-EEA state whose residence is required in order to enable a child or dependant adult, who is British, to live in the UK.

Collective action can stop the deportation of hundreds of Zambrano carers who are refused settlement after 1 July 2021.

Many of these single or widowed carers now risk having to return to their home countries in the Caribbean, Africa and Asia after Brexit saw the UK pull out of the EAA agreement last January.

These parents previously relied on the EU free movement regulations. To remain living and working on British soil, they must now apply for settled status or pre-settled status under Appendix EU of the UK's immigration rules.

A staggering 770 families, or 61 per cent of Zambrano applicants saw their applications for settlement under Appendix EU rejected by immigration caseworkers in June 2020. By contrast, less than one per cent of applications by EU citizens who applied for settlement were refused.

By September 2020, the Home Office had refused 1,090 of the 1,730 processed Zambrano applications. A further 1,540 applications remained outstanding for a total of 3,270 applications.

Settlement refusals are leaving thousands of families with no option but to seek legal remedy via the UK court system.

Zambrano carers are the first group to propose bringing a collective action before a judge.

A Group Litigation Order (GLO) could assign all future and outstanding legal claims to one court and one judge. Zambrano carers, the courts and the UK taxpayer could save thousands in administration costs while avoiding a human tragedy.

The purpose of the group legal claim would be to prove the Home Office's policy is flawed and therefore unlawful.

The GLO would cover three issues:

Issue one: To achieve settlement under one part of the immigration rules (Appendix EU),  Zambrano carers are told to first make an application for leave to remain under another part of the Immigration rules (Appendix FM). This requirement has no basis in law.

One refusal read: "As you did not submit a further Appendix FM application or Article 8 ECHR claim in these circumstances, you have failed to show that you would be required to leave the UK and that X would be unable to reside in the UK or EEA if you left the UK for an indefinite period. Accordingly, your application on the basis of being a 'person with a Zambrano right to reside' has been refused."

Issue two: Zambrano carers who follow the Home Office's advice, and first apply for leave to remain under Appendix FM before applying under Appendix EU, face three problems.

  1. Applicants who hold leave under Appendix FM at the time they apply under Appendix EU rules will be refused - even if the Home Office told the applicant to first apply for leave under Appendix FM.
  2. Achieving permanent residence under Appendix FM can take up to 10 years - with renewal applications due every 2.5 years.
  3. Appendix FM exists due to the UK's presence in the Council of Europe. The Tory manifesto contains a commitment to rewrite the Human Rights Act and potentially leave the Council of Europe, thereby withdrawing the UK from the ECHR. Zambrano carers could be left with no realistic pathway to permanent residence in the near future.

Issue three: In a last-ditch effort to qualify under Appendix EU, some carers with leave to remain under Appendix FM will allow that leave to run out, giving them another chance to succeed under Appendix EU. The Home Office still refused these Appendix EU applications for "allowing their leave to remain under the UK immigration rules to expire". As with issue one, this refusal reason has no basis in law.

Many Zambrano carers feel the Home Office is setting them up to be deported.

The Home Office has yet to explain why approximately 30 per cent of Zambrano carers are approved - even though they never applied for leave to remain under Appendix FM or despite currently holding residence under another part of the UK immigration rules.

Legal battles have rumbled on since December 2019 over the matter and have even been fought in the UK's Supreme Court.

In December 2019, Justice Arden of the Supreme Court, wrote: "The overarching question is whether the son would be compelled to leave by reason of his relationship of dependency with his father.

"As explained in para 28 of this judgment, on the FTT's findings, the son would be compelled to leave with his father, who was his primary carer.

"That was sufficient compulsion for the purposes of the Zambrano test."

In July 2020, Upper Tribunal Judge Grubb said: "Although the Supreme Court did not specifically refer to the Court of Appeal's comment that a derivative right of residence is a right of last resort which would only apply if a person has no other means to remain lawfully in the UK, I see no basis for such a limitation in principle.

"The fact that a person may be able to establish an alternative basis for remaining in the UK does not detract from, if it is established, his EU right of residence derived from the effect of his British citizen child being unable to remain in the UK."

Despite these rulings at the First Tier Tribunal, Upper Tribunal and Supreme Court, the Home Office has yet to update its guidance.

Campaigners say: "This is completely unfair and will be too much for them to take, being torn away from the way of life they know best to go and live somewhere strange and unfamiliar.

"Something needs to be done to help these people and the struggle they are going through.​"

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