'Zambrano' carers
A 'Zambrano' carer is a person from a non-EEA state whose residence is required 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 now only applies to a person:
- who entered the UK on or before 31 December 2020, and
- made an application to the EU Settlement Scheme, and
- who either:
- has EU pre-settled status or
- applied on time but their application has not yet been decided.
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 they 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 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.
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 person with EU pre-settled status has the right to live and work in the UK. But a person with EU pre-settled status has the same rights to access housing and benefits that applied immediately before the Brexit transition period ended, meaning that they must have a qualifying right to reside (SI 2020/1309, schedule 4). A Zambrano right to reside is not a qualifying right to reside for a housing allocation, homelessness assistance or universal credit, state pension credit or housing benefit.
However, a person with a Zambrano right to reside has the ‘right to rent’ from a private landlord, although in England they will be subject to a right to rent check by their landlord. Any person who is homeless or threatened with homelessness within 56 days has a right to free advice and information regardless of their immigration status.
A Zambrano carer with pre-settled status can apply to social services for Children Act assistance if they cannot accommodate or support themselves which can include housing at nil or a very low rent: R (Yekini) v LB Southwark (2014). They also have the right to assistance under the Care Act 2014 if they are, or care for, a vulnerable adult.
Zambrano carers are sometimes refused Children and Care Act assistance on the grounds of their immigration status. But this is wrong because (unlike housing assistance) Children and/or Care Act assistance does not breach the terms of their leave (Nationality, Immigration and Asylum Act 2002, schedule 3 paras 1, 7; Care Act 2014, s.21; Immigration and Asylum Act 1999, s.115(9)).
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).
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 IAA registered adviser. The applicant has the right to appeal to a tribunal but must do so within 14 days of being notified of the decision (28 days if they are living outside the UK). The appeal can be made online (and must be made online if it is submitted by their solicitor/adviser).
