Section 6: Personal History & 26(1)(c)

[Zambrano-carer]

Will Zambrano carers automatically get the right to remain?

"There is wide agreement, among the public, politicians and business, that EU citizens are welcome here and that the government should make clear they can stay,"

-Gisela Stuart, the Labour MP who campaigned for Britain to leave the European Union

[secret.simon]

The short answer is "Nobody knows".

It is as yet unclear as to which EU citizens will be allowed to stay. Jonathan Portes's excellent blog post on the complexities of defining the right to stay in terms of EU citizens who are currently resident legally in the UK shows just how complicated the situation is in terms of EEA citizens already in the UK.

A Zambrano card holder is not even an EEA citizen. I can only assume that the situation is even more precarious.

It seems to me that UK law makes the assumption that British citizens can move out of the country with their non-UK family if they or their family do not meet visa requirements (cf those couples who fail to meet the £18,600 salary requirement). EU law on the other hand wants to ensure that the EEA citizen has the right to live anywhere within the EU with his family unit.

In the absence of EU law, I can't see Zambrano card-holders being allowed to remain, unless specific provision is made for them, ideally in primary legislation.

[noajthan]

Zambrano does not lead to settled status / PR even now.

[Obie]

Most Zambrano Parents will clearly meet the terms of the rules as parents, or if they are 2 non nationals parents, they will be able to rely on 117B(6) to resist any attempt at removal.

They will be fine, unless the 2014 Act is repealed, or the rules are dramatically changed.

[Zambrano-carer]

Many EU citizens appear to be filing paperwork to gain permanent residence. Should Zambrano carers file for leave to remain, too?

A solicitor recently told me not to risk filing for leave to remain.

Apparently, if the Home Office rejects the Leave to Remain application, the previous Zambrano application becomes invalid.

I would prefer to file and get a new status than not file and risk deportation.

Thanks for the information on section 117B(6):

In section 117B(6), Parliament has prescribed three conditions, namely:

(a) the person concerned is not liable to deportation;

(b) such person has a genuine and subsisting parental relationship with a qualifying child, namely a person who is under the age of 18 and is a British citizen or has lived in the United Kingdom for a continuous period of seven years or more; and

(c) it would not be reasonable to expect the qualifying child to leave the United Kingdom.

"

[Obie]

If you have Zambrano status, it is no-brainer to apply for Leave to remain.

[Zambrano-carer]

If you have Zambrano status, it is no-brainer to apply for Leave to remain.

That's good to hear. I hesitated because it took so many years and court hearings to get my derivative residence card.

Another question:

If I apply for the Family Leave to Remain and the child becomes an adult during the process, will I lose the ability to get FLP?

Many thanks,

[Zambrano-carer]

Hi,

I currently hold a derivative residence card. I am a "Zambrano carer".

Today I submitted an application for leave to remain in the UK on the basis of my family life as a parent and on the basis of my private life in the UK.

I am curious to hear of anyone's experience with the application process?

I wonder if it is relatively straightforward since we were already granted the derivative residence?

It was a battle to get the derivative card in the first instance. I wonder if the FLR(FP) will be equally hard?

Cheers,

[secret.simon]

The point I was trying to illustrate was the difference in the position of the child in EU and UK law.

In EU law, the child has the right to reside anywhere in the EU and has the right to have his/her non-EEA parent carer with her. That is the basis of the Zambrano right.

In UK law, you have quoted the correct position.

In section 117B(6), Parliament has prescribed three conditions, namely:

• (a) the person concerned is not liable to deportation;
  (b) such person has a genuine and subsisting parental relationship with a qualifying child, namely a person who is under the age of 18 and is a British citizen or has lived in the United Kingdom for a continuous period of seven years or more; and
  (c) it would not be reasonable to expect the qualifying child to leave the United Kingdom.

The crucial difference is that in UK law, it is your responsibility to prove the last condition too, that it is not reasonable to expect the child to leave the UK. That takes into account how old the child is (the younger the child the easier it is to adapt to life in another country), whether he has citizenship of that country (presumably s/he would have citizenship through you by descent in your home country), etc.

This question does not arise in EU law because it is assumed that the child should remain in the EU. Under UK law, the child, even though a British citizen, could be expected to leave the UK with you.

That is why, I believe, in your case, getting a visa under UK law will be harder than getting the Zambrano visa under EU law.

Ironically, in case of refusal, the best option for you in that case would be to move to another EEA country with your British child and potentially get a Chen carer card (similar to Zambrano, but for children of a different EEA nationality than the resident country; such as an Irish child in the UK).

Another question:If I apply for the Family Leave to Remain and the child becomes an adult during the process, will I lose the ability to get FLP?

How old is the child? To the best of my knowledge, your Zambrano card runs out when s/he ceases to be a child at 18.

[Zambrano-carer]

How old is the child? To the best of my knowledge, your Zambrano card runs out when s/he ceases to be a child at 18.

16 yrs old currently so the card expires in 2 years.

The crucial difference is that in UK law, it is your responsibility to prove the last condition too, that it is not reasonable to expect the child to leave the UK. That takes into account how old the child is (the younger the child the easier it is to adapt to life in another country), whether he has citizenship of that country (presumably s/he would have citizenship through you by descent in your home country), etc.

This question does not arise in EU law because it is assumed that the child should remain in the EU.

When I applied for the derivative residence card, the Home Office refused my application in part on the basis that we could leave the UK and return to my native country. It seems I shall have to go through the same argument under my UK application...

If I am refused for Leave to Remain, I should be able to exercise my right to reside until the UK formally leaves the EU. I would guess that my derivative residence card should still be legal since as the First Tier Tribunal and the Upper Tribunal already ruled in my favour.

[secret.simon]

You should be fine for the next two years then, as even Brexit will take two years atleast.

Zambrano lasts until your child turns 18. See Regulation 15A of the EEA Regulations.

Do you have any other grounds regarding family and private life? How long have you lived (legally and illegally) in the UK?

[Zambrano-carer]

Hi,

Is there a basic minimum requirement to apply for Family Leave to Remain as a parent?

Thanks

[Zambrano-carer]

Section 6 asks about criminal convictions, cautions, any civil judgments or civil penalties.

It asks if you have received a caution in relation to a criminal offence. How would I check to make sure this never happened?

[CR001]

I have merged your topics so that members who respond can see your previous history.

announcements/multiple-posts-will-be-lo ... t5722.html

[CR001]

Presumably the FLR(FP) application you wish to make is for the child that turns 18 this year given that you stated the child was 16 in 2016???

Did you not apply for FLR(FP) in 2016???

Hi,

I currently hold a derivative residence card. I am a "Zambrano carer".

Today I submitted an application for leave to remain in the UK on the basis of my family life as a parent and on the basis of my private life in the UK.

I am curious to hear of anyone's experience with the application process?

I wonder if it is relatively straightforward since we were already granted the derivative residence?

It was a battle to get the derivative card in the first instance. I wonder if the FLR(FP) will be equally hard?

Cheers,

[Zambrano-carer]

I did not apply as I wanted to see what happened with Zambrano carers.

I am applying now.

[Tinywarona1606]

If you have Zambrano status, it is no-brainer to apply for Leave to remain.

Obie which route would a Zambrano carer apply for 5 or 10 year route?