Zambrano Derivative Residence Cards
Let’s face it the phrase “Zambrano Derivative Residence Card” is a bit of a mouthful that does not easily trip off the tongue. However, as the best London immigration solicitors use the phrase a lot, this blog looks at what a Zambrano Derivative Residence Card is and what it does.
In essence, the Zambrano Derivative Residence Card is relevant to:
• Non-EEA national primary carers of British citizens; and
• Who have no other grounds to apply to remain in the UK;
• And would otherwise have to leave the UK.
As the criteria for a Zambrano Derivative Residence Card are hard to establish, the best London immigration solicitors always look at a non-EEA citizen’s alternative options to stay in the UK before applying for a Zambrano Derivative Residence Card.
In essence, an applicant for a Zambrano Derivative Residence Card has to be able to demonstrate that:
• The applicant is the primary carer of a British citizen; and
• The British citizen would not be able to stay in the UK if their primary carer was not allowed to continue to stay and look after them.
How can OTS Solicitors help?
OTS Solicitors are specialist in Immigration law matters and are recommended by The Legal 500 and feature in the BBC 2 series “Who Should Get to Stay in the UK?”.
The Immigration solicitors in the Individual Immigration law team at OTS Solicitors specialise in Zambrano Derivative Residence Card applications. They can assess your application, guide you through the process and, if you have had a Zambrano Derivative Residence Card application refused, look at your options.
For advice and help on a Zambrano Derivative Residence Card application please call us on 0203 959 9123 to arrange an appointment to speak to one of our experienced London immigration solicitors.
The Zambrano Derivative Residence Card
The Zambrano Derivative Residence Card is named after the case of Zambrano who secured a derivative right of residence based upon their role of primary carer.
Since the Zambrano court case there has been much case law and Home Office rules and guidance on what a Zambrano Derivative Residence Card is and who is able to apply for a Zambrano Derivative Residence Card, based on a derivative right of residence.
What is a derivative right of residence?
top London immigration solicitors say that UK EEA Regulations say that a “derivative right of residence” applies to someone who:
• Is not exempt under Immigration Rules from applying for a derivative right of residence;
• Satisfies the criteria for derivative residence, namely:
• Is the primary carer of a British citizen; and
• The British citizen is residing in the United Kingdom; and
• The British citizen would not be able to reside in the UK or in another EEA State if the person applying for derivative rights was required to leave the UK.
Primary carers and Zambrano Derivative Residence Card applications
The success or failure of a Zambrano Derivative Residence Card application normally comes down to whether an applicant can prove that they are a “primary carer” of a British citizen.
The rules say that an applicant will be considered the “primary carer” of a British citizen if:
• The applicant for a Zambrano Derivative Residence Card is a direct relative or a legal guardian of the British citizen; and
• The applicant for the Zambrano Derivative Residence Card has primary responsibility for the person’s care.
The classic example of “primary responsibility” is the relationship between parent and dependant minor child. However, a Zambrano Derivative Residence Card application is not confined to non-EEA citizens looking after their dependent children who have British Citizenship.
Whilst the case of Zambrano related to the parent-child relationship, other carers can successfully apply for Zambrano Derivative Residence Cards. The courts have determined that non-EEA citizens who care for elderly parents who are dependent on them could fall within the definition of a Zambrano carer. The key to a successful application is to prove that there is a relationship of dependency where there could not be a separation between carer and British citizen.
Applicants for Zambrano Derivative Residence Cards rightly fear the argument that the care of an adult British citizen dependant could be undertaken by a paid home carer or by the relative being placed in a National Health Service or private care home.
However, the court has ruled that just because the British citizen is a child or just because an adult dependent could receive state care does not rule out the need for Home Office officials and the court to make enquiries into the Zambrano Derivative Residence Card application. The success of the application will turn on the nature of the dependant caring relationship between non-EEA citizen and dependant British citizen and the evidence that can be found to prove the relationship and care needs.
When to make a Zambrano Derivative Residence Card application
In May 2019, the Home Office published new guidance on Zambrano Derivative Residence Card applications. top London immigration solicitors say that the new guidance states that if an applicant can make a different type of Immigration application then they should make that application first, and only if they fail in that application, should they then apply for a Zambrano Derivative Residence Card.
The best London immigration solicitors say that what this means in practice is that if an applicant has a Human Rights claim under the right to respect for private and family life (Article 8 of the European Convention on Human Rights) they should make this claim first. It is only if they do not win their Human Rights case that the applicant should submit a Zambrano Derivative Residence Card application. If the Zambrano Derivative Residence Card application is submitted before all other options have been explored it is likely to be refused by the Home Office.
A Zambrano Derivative Residence Card application is difficult to obtain but for primary carers of British citizens who have exhausted other Immigration application options it may be the only route to be able to stay in the UK. That is why it is so important that a Zambrano Derivative Residence Card application is prepared with care to enable carer and British citizen dependant to remain together.
How can OTS Solicitors help?
Central London based OTS Solicitors are specialists in Immigration law matters and are recommended for Immigration law in the Legal 500. OTS Solicitors have Law Society accredited solicitors status as trusted specialists in Immigration law.
The specialist Immigration lawyers in the Individual Immigration law team are highly experienced in making applications for Zambrano Derivative Residence Cards and Human Rights applications.
OTS Solicitors are used to dealing with the complex Home Office Immigration Rules and case law surrounding Zambrano Derivative Residence Card applications and advising on the evidence required to secure a Zambrano Derivative Residence Card.