15 May 2019

No derivative right of residence for applicants with leave to remain under the immigration rules

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On 02 May 2019 Home office has changed their guidance on derivative right of residence to accommodate judgement of court of appeal in Patel (below) which states that anyone who already has leave to remain or entitled to leave to remain under the domestic immigration rules cannot benefit from derivative rights of residence (including Zambrano judgement).

What does it mean for parents with a British child (Zambrano cases).

If parents with a British child already have leave to remain under the immigration rules they will not be able to switch under derivative right. Similarly, parents who have not made an application yet but qualify under the immigration rules to make one should apply under the immigration rules first. They will only benefit from derivative rights if their application under the immigration rules is refused.
This means derivative right to reside now is only available to an applicant who has no other means to remain lawfully in the UK as the primary carer of a dependent British citizen, or a dependent of that primary carer.
New home office guidance which is published on 2 May 2019 states:
“As a Zambrano case centres on a person seeking to remain in the UK with a British citizen, there is significant overlap with the right to respect for private and family life which is protected by Article 8 of the European Convention on Human Rights (ECHR).
Where a person wishes to remain in the UK on the basis of family life with a British citizen, they should first make an application for leave to remain under Appendix FM to the Immigration Rules, not for a derivative residence card on the basis of Zambrano.”
Quoting the case of Patel guidance states:
 
“In the case of Patel v SSHD [2017] EWCA Civ 2028 (13 December 2017), the Court of Appeal ruled that someone holding leave to remain under domestic law would not benefit from a derivative right to reside. The Court also ruled that Zambrano is a not a back-door route to residence for those who have a British citizen child without having or acquiring leave to remain.”
This means that a Zambrano application must be refused if the applicant:
  • has never made an application under Appendix FM to the Immigration Rules or any other Article 8 ECHR claim, where that avenue is available or
  • has been refused under Appendix FM or Article 8 ECHR but their
  • circumstances have changed since the decision was made.

About the Author

Awais Javed
Awais has an extensive experience of advising high net-worth individuals on all types of immigration matters, ranging from investor and entrepreneur visa applications to appeals and judicial reviews in the Immigration Tribunal and the High Court.

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