A common scenario we encounter is where a British elderly and ill parent is in the UK, is cared for by his/her adult child and the adult child either has limited leave which is about to expire or does not have leave to remain. One possible option to consider is an application as a Zambrano carer but be warned that is not for the faint hearted.

To put this into context, between January 2012 and 30 June 2018, so a period of 6.5 years, only 1740 people were deemed to have derived rights as Non -EU carers (Source: Home Office, FOI 50286). Although the figure is exclusive of cases granted after a challenge, the number is still very small. Part of the problem is applicants’ failure to properly prepare their case. Medical reports, detailed statements setting out the dependency between the parties, in my experience, is often lacking. Applicants must remember that it is for them to make out their case. However, if we are to play the blame game, then my vote goes to the Home Office’s recalcitrant attitude towards such applications.

The leading authority – Zambrano (2011) was a European Union law case; it decided that it was wrong under EU law to refuse a non- EU applicant (in this case the Colombian father) a right of residence in Belgium (part of the European Union – as we are – for now) as this would result to depriving the EU national (in this case his two Belgian children) from “the genuine enjoyment of the substance of the rights” they have as citizens of the Union. Put simply, Mr Zambrano leaving Belgium would mean that his children will be forced to leave an EU country as they are dependent on the care provided by their non-EU father. The dependency here is due to the children’s young age rather than illness. Since the Zambrano ruling there have been a trickle of ‘Zambrano ilk’ cases. The most recent being MS (Malaysia) and it is worth noting the importance of this very recent Court of Appeal case.

The case of MS (Malaysia) v Secretary of State for the Home Department [2019] EWCA Civ 580 again examined the issue of dependency but this time the parent is the dependant. The case involved a 58-year-old Malaysian citizen who cares for her 87-year-old British mother. The latter suffers from a whole raft of ailments including heart and kidney disease. Both parties are in the UK where the daughter applied to remain to continue caring for her mother. The application was considered against the Zambrano principle. The application was refused, the applicant daughter appealed and won the appeal. The Home Office challenged the successful appeal and lost. Ironically, the Home Office’s action may now assist appellants in similar position as the case provides much needed clarity in what can often be a restrictive application of Zambrano. The court in Paragraphs 25-26 stated:

Whether the boundary (which has impediment on the right to reside on one side and compulsion to leave on the other) is crossed is clearly a matter of fact and degree. What is necessary in each case is to examine the character and quality of the relationship of dependency… because it is that dependency which would lead to the Union citizen being obliged, in fact, to leave the territory of the Union.

The test in the case of adult dependents is a very demanding one, which will be met only exceptionally, but remains one of practical compulsion such that the EU citizen is left with no practical choice but to leave the territory of the Union.

MS (Malaysia) makes clear that only exceptional cases will qualify as parties must show that the EU national ‘is left with no practical choice but to leave the territory of the Union’. Such finding is nothing new in the world of Zambrano but the passage from Lord Justice Underhill below must cause the Home Office to lament their decision to challenge the case. Lord Justice Underhill examined the Home Office’s usual tactic of justifying a refusal by reference to the existence and option of social care i.e. that the state will provide. This contention is particularly frustrating as anyone living in the real world knows that what the state can provide often falls short of the care an elderly parent requires simply because it fails to account for the emotional need of someone vulnerable and possibly at the end of their life. In MS (Malaysia), the court made clear that the existence of alternative care, such as a care home or the social services, should not be the only overriding or predominant factor.

The availability of state-funded medical and social care will, in many cases, make it hard for those who provide care for their elderly relatives to bring themselves within the Regulation. The availability of state care is not, however, to be treated as a trump card in every case, irrespective of the nature and quality of the dependency on the carer which is relied on. Just as the availability of an EU citizen parent to be a carer of a minor child does not render unnecessary an enquiry into the nature of the dependency of the child on her non-EU parent (see Chavez-Vilchez), the availability of state care does not avoid the need to enquire into the actual dependency of the EU citizen on her adult carer. The availability of alternative care is a relevant, but not always decisive factor.

Many will have experienced refusals that have been based largely on the fact that social care is available for their vulnerable family member. It is now so common that I often refer to it as the contention that ‘RULE THEM ALL’ (courtesy of the Lord of the Rings). MS (Malaysia) resoundingly said it is not a ‘trump card’. It remains to be seen whether the Home Office will pay heed to the finding. We can only hope that they do and finally have due regard to the reality of many which is that social care, more often than not, cannot discharge the needs of someone vulnerable due to young age, mental and/or physical illness as it wholly fails to consider the emotional bond that comes out of familial connection.

For more information on the status of a Zambrano carer and the latest news on how Brexit affects such applicants look at our website at www.douglass-simon.com.