WHAT IS A DERIVATIVE RIGHT OF RESIDENCE?
In 2012, the landmark judgment of Ruiz Zambrano (C34/09) resulted in significant amendments being made to the immigration rules, to incorporate a ‘derivative right of residence’ for primary carers’ of EEA nationals. Proceeding the judgment, it was established that Member States could not refuse non-EEA national primary carers’, the right to reside or work in a Member State, if doing so would compel the EEA national to leave the EEA to join their primary carer, thereby depriving them of their rights of citizenship an EEA national.
This provision is presently embodied in regulation 16(5) of the Immigration (European Economic Area) Regulations, which states that a ‘person has a derivative right of residence’ in the UK if, s/he is a primary carer of a British citizen residing in the UK, and that the British citizen would be compelled to leave the UK or EEA if the primary carer was ‘forced to leave for an indefinite period’.
LIMITING THE RIGHTS OF ‘ZAMBRANO’ APPLICANTS
The Home Office released a comprehensive guidance, titled ‘Free Movement Rights: derivative rights of residence’, on 2nd May 2019, clarifying the rights of ‘Zambrano’ applicants in the UK. A notable change in the policy is the consideration of ‘alternative means to remain in the UK’, located on page 52, which significantly limits applications on the basis of Zambrano.
In accordance with this guidance, a primary carer of a British national will now only be able to make an application on the basis of Zambrano if he/she has ‘no other means’ of residing lawfully in the UK. It is further outlined that any individual wishing to obtain leave to remain on the basis of their family life with a British citizen, should primarily make an application under Appendix FM of the Immigration rules and ‘not’ an application on the basis of Zambrano.
Decision makers are further instructed to refuse applications made on the basis of Zambrano, if the applicant has not previously made an application on the basis of Appendix FM or Article 8 of the ECHR or if their previous application under Appendix FM or Article 8 has been refused, and their personal circumstances have changed since the refusal.
This effectively means that applicant’s despite their eligibility under Zambrano will no longer directly be able to apply for a derivative residence card but will instead be compelled to first make an application under Appendix FM of the Immigration rules or Article 8 of the ECHR.
The justification for such a change?
The Home Office has justified its decision to restrict Zambrano applications by highlighting the ‘overlap’ between Article 8, the right to respect for private and family life, and the basis of Zambrano applications, which is family life as a primary carer of a British national.
The Home Office have further justified their reasoning by emphasising paragraph 76 of the judgment in Patel V SSHD  EWCA Civ 2028, that ‘the Zambrano principle cannot be regarded as a back-door route to Residence’. Whilst the Court had intended that this principle be applied to Zambrano applicant’s who ‘marry a British citizen and have children, without having leave to remain’, despite ‘the risk that they may be compelled to leave the country’. The Home Office has applied this judgment unfairly to all Zambrano applicants.
An unfair policy?
The decision to restrict applicants from making a Zambrano application without first applying under Appendix FM or Article 8 of the ECHR unfairly restricts the rights of primary carers’ who can no longer have the freedom of choosing between both applications. Moreover, by restricting qualifying individuals from directly making applications on the basis of Zambrano, the Home office have manipulated the law to preclude applicants from making applications under the EU Settlement Scheme which is free of cost. This effectively diminishes the ray of hope for Zambrano applicants who previously did not have a right of settlement under the regulations.
Not only is the change in policy restrictive, such a requirement also unfairly exposes individuals who qualify for a derivative right of residence to extortionate costs. Whilst the application fee for a derivative right of residence is merely £65, the Home Office fee for processing an application under Appendix FM of the Immigration rules or Article 8 is presently £1300, not including the additional payment of £1000, in respect of the Immigration Health Surcharge, leading us to question whether the implementation of such a requirement is a money-making tactic.
Despite incurring such costs applicant’s still face the risk that they may later need to make an application under the basis of Zambrano, and that their previous refusal could be used adversely against them.