Has Zambrano ruined my partner's chances of making 10 years legal residency ILR application?

[expositouk1]

Hi there,

I will be grateful for any information relating to my partner's situation, please? Basically, I'm trying to find out whether she can apply for ILR via the 10 year long residency route if she's been on a Zambrano visa for a year in between. She came to stay in the UK on 26th May 2006 on a working holiday visa issued from 16/05/05 -16/05/07. She subsequently got married and was given a spouse visa twice from 26/04/07 - 26/04/08 and from 9/4/08 - 9/4/12. The marriage failed and she was compelled to apply for a Zambrano visa which was issued on 8/4/14. It was to run until 8/4/19, but after about 8 months, she made another application for 5 years as a parent under the UK immigration rules. This was granted 13/10/15 - 13/4/18 under the 10 year patent route.

Collectively, she has lived continuously and legally in the UK for at least 10 years. However as Zambrano is classed as derivative and outside the immigration rules, I'd like to find out if being on that visa has damaged her prospects of applying for ILR using the 10 year long residency route or whether she can still apply?

Its all very confusing (like everything relating to UK visa applications!) as the 10 year long stay ILR application is for those who have been in the UK legally for 10 years minimum. Is the Zambrano duration not 'legal' because it is derivative or outside the immigration rules?

Your assistance will be appreciated as always.

[CMOSUK]

Hi there,

I will be grateful for any information relating to my partner's situation, please? Basically, I'm trying to find out whether she can apply for ILR via the 10 year long residency route if she's been on a Zambrano visa for a year in between. She came to stay in the UK on 26th May 2006 on a working holiday visa issued from 16/05/05 -16/05/07. She subsequently got married and was given a spouse visa twice from 26/04/07 - 26/04/08 and from 9/4/08 - 9/4/12. The marriage failed and she was compelled to apply for a Zambrano visa which was issued on 8/4/14. It was to run until 8/4/19, but after about 8 months, she made another application for 5 years as a parent under the UK immigration rules. This was granted 13/10/15 - 13/4/18 under the 10 year patent route.

Collectively, she has lived continuously and legally in the UK for at least 10 years. However as Zambrano is classed as derivative and outside the immigration rules, I'd like to find out if being on that visa has damaged her prospects of applying for ILR using the 10 year long residency route or whether she can still apply?

Its all very confusing (like everything relating to UK visa applications!) as the 10 year long stay ILR application is for those who have been in the UK legally for 10 years minimum. Is the Zambrano duration not 'legal' because it is derivative or outside the immigration rules?

Your assistance will be appreciated as always.

From a bit of searching around iv done, i wanted to ask is this the same as the derivative residence card?

the important thing that caught my eye about this was, if you read the page near the bottom on the Home Office website (click here)

but that is, if it is the derivative residence card, and also as you state the Zambrano is classed derivative.


'What you can’t do
You can’t count time spent in the UK with a derivative right of residence towards applying for permanent residence in the UK.''

so even if you do have another visa category as you did apply after 8 months and if that statement applies to you, i don't think you have completed the 10 years qualifying period required for settlement. Again please consult an expert or an immigration solicitor on this, as i'am just going by some information.

also there seems to be a gap of between the second spouse visa from'' 9/4/08 - 9/4/12'' and the Zambrano Visa ''issued 8/4/14. It was to run until 8/4/19''

that is roughly a 2 year gap with out a visa?

[expositouk1]

Thank you so much. Yes, the Zambrano is indeed a derivative residence visa so the point you raise would be valid. However, guidance for the 10 year route also states that apploicants should have been in the UK legally for 10 years (known as your ‘continuous residence’) so I wonder if the period on the Zambrano visa isn't classed as 'legal'? I've asked a solicitor for advice and am awaiting a response.

The gap was during the Zambrano application. It took ages for the Home Office to issue it, but even then it was following a refusal and appeal. The rules suggest that the period during which I was awaiting a response for the visa application and the appeal isn't illegal

[CR001]

The rules suggest that the period during which I was awaiting a response for the visa application and the appeal isn't illegal

Applications under the EU regulations are not covered by Section 3C or 3D of the UK Immigration Rules, so any time waiting for an EU route derivative residence card application without a valid visa would be a period of overstay or illegal status. Which rules specifically are you referring to that state the time is not 'illegal'?

[CMOSUK]

"Permanent residence
A person with a derivative right of residence cannot acquire permanent residence in
the UK under the 2016 regulations. This is in line with regulation 15(2) of the 2016
regulations.
The Court of Justice of the European Union (CJEU) also considered in the case of
Alarape (C-529/11) whether the child and the primary carer could acquire a right of
permanent residence on the basis of Article 12 of regulation 1612/68/EEC which
concerns rights in relation to Ibrahim and Teixeira.
In this case, the CJEU concluded that periods of residence completed on the sole
basis of Article 12 of the regulations, cannot be taken into account for the purpose of
getting the right of permanent residence under the directive."

Now these replaced the 2006 regulations, but I don't know if u still come under those regulations as your derivative visa was before that and it depends as in this case it seemed as the though it was relied on article 12 regulations which they then deemed it could not be accounted for.

I think you should maybe wait on the response of your lawyer before deciding anything.

[expositouk1]

The rules suggest that the period during which I was awaiting a response for the visa application and the appeal isn't illegal

Applications under the EU regulations are not covered by Section 3C or 3D of the UK Immigration Rules, so any time waiting for an EU route derivative residence card application without a valid visa would be a period of overstay or illegal status. Which rules specifically are you referring to that state the time is not 'illegal'?

I see. That was what we were told sometime ago. That'll probably scupper things if so.

[expositouk1]

"Permanent residence
A person with a derivative right of residence cannot acquire permanent residence in
the UK under the 2016 regulations. This is in line with regulation 15(2) of the 2016
regulations.
The Court of Justice of the European Union (CJEU) also considered in the case of
Alarape (C-529/11) whether the child and the primary carer could acquire a right of
permanent residence on the basis of Article 12 of regulation 1612/68/EEC which
concerns rights in relation to Ibrahim and Teixeira.
In this case, the CJEU concluded that periods of residence completed on the sole
basis of Article 12 of the regulations, cannot be taken into account for the purpose of
getting the right of permanent residence under the directive."

Now these replaced the 2006 regulations, but I don't know if u still come under those regulations as your derivative visa was before that and it depends as in this case it seemed as the though it was relied on article 12 regulations which they then deemed it could not be accounted for.

I think you should maybe wait on the response of your lawyer before deciding anything.

Sure. In the meantime, I came upon this blog, which suggests that 'derived' residence can still be counted towards the 10 year long residence ILR:

https://www.freemovement.org.uk/can-tim ... plication/

What do you make of it?

[CR001]

Sure. In the meantime, I came upon this blog, which suggests that 'derived' residence can still be counted towards the 10 year long residence ILR:

https://www.freemovement.org.uk/can-tim ... plication/

What do you make of it?

But she is not a family member of an EU citizen exercising treaty rights. Yes time spent under the EU rules as a family member with a EEA residence card can count towards 10 years ILR, but the applicant must submit substantial evidence of the EU citizen being a qualified person exercising treaty rights for the whole period of EEA residence that is being claimed.

9/4/12. The marriage failed and she was compelled to apply for a Zambrano visa which was issued on 8/4/14.

It still doesn't change the fact that she does not have 10 years of lawful residence due to the gap from when her spouse visa expired and the Zambrano residence card was issued, a massive two year gap with no legal status.

[expositouk1]

Sure. In the meantime, I came upon this blog, which suggests that 'derived' residence can still be counted towards the 10 year long residence ILR:

https://www.freemovement.org.uk/can-tim ... plication/

What do you make of it?

But she is not a family member of an EU citizen exercising treaty rights. Yes time spent under the EU rules as a family member with a EEA residence card can count towards 10 years ILR, but the applicant must submit substantial evidence of the EU citizen being a qualified person exercising treaty rights for the whole period of EEA residence that is being claimed.

9/4/12. The marriage failed and she was compelled to apply for a Zambrano visa which was issued on 8/4/14.

It still doesn't change the fact that she does not have 10 years of lawful residence due to the gap from when her spouse visa expired and the Zambrano residence card was issued, a massive two year gap with no legal status.

Gotcha. Thanks for the clarification

[Richard W]

It still doesn't change the fact that she does not have 10 years of lawful residence due to the gap from when her spouse visa expired and the Zambrano residence card was issued, a massive two year gap with no legal status.

Indeed, a period with no more legal status that the long-term RC-less non-working CSI-less Polish wife of a Pole working full time in the UK. If one looks at the cited link about derivative residence cards, you will see that, strictly speaking, they are not necessary. They are just very 'convenient'. The more worrying question is, rather, whether anything significant changed between the initial application and the success of the appeal. Did the appeal establish that she had a derivative right of residence when she applied for the card?

The question to ask is whether she was in breach of immigration law. As she seems not to have "been in breach of the immigration laws", I rather think she was not in breach of immigration law. (There are people who are "in breach of the immigration laws", but are not in breach of any law or combination of laws, such as the newborn children whose parents depend on limited leave to remain.)

[expositouk1]

Hi guys,
I am rekindling this thread instead of starting a new one following the government's publication of the EU settlement scheme rules. From the new regulations,

https://www.gov.uk/guidance/immigration ... ppendix-euit seems that those who are exclusively on the Zambrano route can now apply for settlement or indefinite leave to remain. Does that change anything for those such as my partner who briefly went onto the zambrano visa but shifted to a new category later on? In other words, does time spent on Zambrano now count towards 10 years legal residence now that Zambrano leave can itself lead to indefinite leave?

Thanks

[CR001]

The rules suggest that the period during which I was awaiting a response for the visa application and the appeal isn't illegal

Applications under the EU regulations are not covered by Section 3C or 3D of the UK Immigration Rules, so any time waiting for an EU route derivative residence card application without a valid visa would be a period of overstay or illegal status. Which rules specifically are you referring to that state the time is not 'illegal'?

The above still applies. She has a gap in her residence so ILR will fail as she had no legal status in the UK.

The Settlment scheme for eea route applicants doesn't apply to her as she holds a visa issued under the UK immigration rules.

[expositouk1]

Hi there,

I will be grateful for any information relating to my partner's situation, please? Basically, I'm trying to find out whether she can apply for ILR via the 10 year long residency route if she's been on a Zambrano visa for a year in between. She came to stay in the UK on 26th May 2006 on a working holiday visa issued from 16/05/05 -16/05/07. She subsequently got married and was given a spouse visa twice from 26/04/07 - 26/04/08 and from 9/4/08 - 9/4/12. The marriage failed and she was compelled to apply for a Zambrano visa which was issued on 8/4/14. It was to run until 8/4/19, but after about 8 months, she made another application for 5 years as a parent under the UK immigration rules. This was granted 13/10/15 - 13/4/18 under the 10 year patent route.

Collectively, she has lived continuously and legally in the UK for at least 10 years. However as Zambrano is classed as derivative and outside the immigration rules, I'd like to find out if being on that visa has damaged her prospects of applying for ILR using the 10 year long residency route or whether she can still apply?

Its all very confusing (like everything relating to UK visa applications!) as the 10 year long stay ILR application is for those who have been in the UK legally for 10 years minimum. Is the Zambrano duration not 'legal' because it is derivative or outside the immigration rules?

Your assistance will be appreciated as always.

From a bit of searching around iv done, i wanted to ask is this the same as the derivative residence card?

the important thing that caught my eye about this was, if you read the page near the bottom on the Home Office website (click here)

but that is, if it is the derivative residence card, and also as you state the Zambrano is classed derivative.


'What you can’t do
You can’t count time spent in the UK with a derivative right of residence towards applying for permanent residence in the UK.''

so even if you do have another visa category as you did apply after 8 months and if that statement applies to you, i don't think you have completed the 10 years qualifying period required for settlement. Again please consult an expert or an immigration solicitor on this, as i'am just going by some information.

also there seems to be a gap of between the second spouse visa from'' 9/4/08 - 9/4/12'' and the Zambrano Visa ''issued 8/4/14. It was to run until 8/4/19''

that is roughly a 2 year gap with out a visa?

Hi, I'm checking again as I can see that those with Zambrano are now being settled status despite the Home Office's unital claim that derivative rights don't and won't ever lead to such. I can see that you're asking about the 2 year gap. There wasn't any, actually. Her first marriage failed but the spousal visa she had hadn't expired when she switched to Zambrano route. So, she's never been without legal right to remain

Does that make any difference at all?