'Zambrano' carers
Contents:
What is a 'Zambrano' carer?
A 'Zambrano' carer is a person from a non-EEA state whose residence is required in order to enable a child or dependant adult who is British to live in the UK (or the rest of the EEA). It is a right derived from EU law, so it only applies to people who entered the UK on or before 31 December 2020.
A Zambrano carer is a parent who had sole care of a child with British citizenship. The Zambrano carer had the right to live and work in the UK (and continues to do so provided s/he applied to the EU settlement scheme on time). This right is known as a Zambrano right after the case that established it and was included in the EEA regulations (Regulation 16(5)): see the Home Office guidance (pdf) on how these regulations were applied.
The parent with care was only granted this right if it was the only way to guarantee the right of the (British citizen) child to continue to live in the UK (or the rest of the EEA). But it was not issued where another carer was available for the child (e.g. the other parent). Domestic violence may, of course, have affected the likelihood of this.
A Zambrano carer who entered the UK before 1 January 2021 and who applied to the EU Settlement Scheme (EUSS) on time can continue to live and work in the UK until their application is decided. Once it is decided, their right to live, work and access housing and benefits depends on whether settled or pre-settled status was granted or if leave was refused.
An application to the EUSS was on time if it was made on or before 30 June 2021, or if the Home Office accepted a late application, on or before 8 August 2023. A person with an outstanding valid application to the EU Settlement Scheme is issued with a Certificate of Application (CoA) which can be digital or non-digital.
Zambrano carers with EU settled status
EU settled status is a form of indefinite leave to remain. A Zambrano carer with EU settled status is eligible for housing and help if they are homeless (Class C) and universal credit/housing benefit to help pay their rent.
Zambrano carers with EU pre-settled status
A Zambrano carer with EU pre-settled status has the right to:
- live and work in the UK
- in Scotland, to rent a home from a private landlord without (unlike in England) having to prove their immigration status
- in Scotland, apply to the council as homeless or to join its housing waiting list; but
- is not entitled to universal credit (UC) or housing benefit (HB) to help pay their rent.
The rules by which a person with EU pre-settled status has access to housing and benefits are those that applied immediately before the Brexit transition period ended but based on that person’s current circumstances. The overall result is that EU pre-settled status is not itself sufficient to get access to housing and benefits it must be in conjunction with some other EEA right to reside. For these purposes EEA rights to reside continue to operate as they did previously with only some minor modifications (SI 2020/1309, schedule 4, paras 1-2, 3(e), 4, 5(b), 6(d), 7(c)).
Although a Zambrano carer is not entitled to UC or HB, if they need help with daily living expenses or to pay rent in Scotland they can apply to social work departments, if they cannot accommodate or support themselves. Applicants in this situation are often asked to prove that they are destitute: in fact, since they have a right to reside, the law does not require this and they need only ask for help, under the Children (Scotland) Act, or the Social Work (Scotland) Act if caring for a vulnerable adult.
EUSS applicants waiting for a decision or refused settled/pre-settled status
Provided their application was made on time, a person’s right to live, work and access housing and benefits while they wait for a decision are the same as a person who has been granted pre-settled status (SI 2020 No. 1209 reg. 4).
Early monitoring of EUSS decisions has shown that applications by Zambrano carers are often refused. If settled/pre-settled status is refused, prompt action must be taken to prevent that person from becoming an overstayer and losing their right to live in the UK. The applicant should seek immediate advice from an experienced OISC registered adviser. The applicant has the right to an administrative review but the time limit is 28 days.
