Joint zambrano application

[mubashir1981]

Hi me and my wife have no leave to remain in uk and we never apply any visa after our student visa expire. My son is 10 year old and got british nationality. Now we both are his primary carer share equal responsibility. Do we have zambrano case or should we make under artical 8 outside immigration rules application.
Recent guidance on 2nd may 2019 issued says zambrano application will refused if u not made artical 8 application.
Under artical 8 we do not fufill any criteria neither family life or private life.

Can home office still refuse application saying u need to make artical 8 claim first?
Thanks

[askmeplz82]

Yes

Page 52 of the Guidance sets out:

“A 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. “ (emphasis added)

The guidance continues:

“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” (emphasis added).

[Casa]

Also see the information in the link to Freemovement's article on Zambrano which came into effect on the 1st May 2019.

https://www.freemovement.org.uk/zambrano-applications/

Neither can you BOTH be the primary carer.

[mubashir1981]

Yes

Page 52 of the Guidance sets out:

“A 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. “ (emphasis added)

The guidance continues:

“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” (emphasis added).

is it not violation of eu law as it is sepreat leage mater how can then force some to make other application if someone qualify for this as per UKBA guidance
Joint applicants
If two primary carers are in the UK otherwise unlawfully, they can both assert a claim to a derivative right in line with regulation 16(9) of the 2016 regulations. Such an application must be considered on the basis that both people would be required to leave the UK for an indefinite period.

[askmeplz82]

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. “

This is arguably not correct under EU law, but is clearly the current position of the Home Office.

[mubashir1981]

I got coa with right to work in uk for both of us me and my wife. Let see what outcome is now. Any making application under artical 8 it does not give u right to work.