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In the UK, the conditions on Zambrano carers are more strict than those for third country nationals who are family members of Union citizens. Whereas third country nationals can access benefits, Zambrano carers can not.54 However, the Court has held that, when a Union citizen returns to the Member State of which he is a national, the conditions for granting a derived right of residence, based on Article 21(1) TFEU, to a third-country national who is a family member of that Union citizen and with whom that citizen has resided, solely by virtue of his being a Union citizen, in the host Member State,
those conditions should not, in principle, be more strict than those provided for by Directive 2004/38 for the grant of such a right of residence to a third-country national who is a family member of a Union citizen in a case where that citizen has exercised his right of freedom of movement by becoming established in a Member State other than the Member State of which he is a national (see, to that effect, judgment of 12 March 2014, O. and B., C‑456/12, EU:C135, paragraph 50).
UK are bound by EU law, so i have no Idea that SIngh will not be applied to Children by virtue of Article 21.caspiansea wrote:Zambrano children who reside lawfully in another member state and then return to the UK with their UK third Country National family member are not automatically granted Surinder Singh status. Therefore, those children remain under Article 20, which is blatant discrimination.
Alternative means to remain in the UKA derivative right to reside 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.
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.
In the case of Patel v SSHD  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
• has been refused under Appendix FM or Article 8 ECHR but their circumstances have changed since the decision was made – for example, the applicant applied on the basis of their relationship with a British spouse, but the couple now have a British child
Applicants being refused because it is open to them to apply under Appendix FM to the Immigration Rules should be directed to the information available at www.gov.uk/uk-family-visa.
If an applicant has made an application under Appendix FM to the Immigration Rules or any other Article 8 ECHR claim, and they were refused and exhausted their appeal rights recently, you must consider whether a derivative right of residence exists following the caseworking steps outlined in this guidance.
mrsliyai wrote: ↑Fri Sep 01, 2017 5:51 pmObie,
My unmarried partner (kenyan) and I (British) along with our baby daughter resided in malta for 8 months where I was self employed.
We returned to the UK in late 2015 and applied for a UK residence card under surinder singh but it was refused because they said surinder singh doesnt apply to efm's. We appealed and have a court date in a couple weeks but because of Sala its probably going to be thrown out.
Can we apply for a UK residence card under surinder singh again but this time use my daughter as the sponsor. She had a residence card in Malta, photos in malta, and plane tickets entering and exiting but not much else because she was a baby.