As outlined previously a number of times there is a possibility for an applicant to gain a right of admission to the United Kingdom on the basis of Zambrano. The applicant can submit a free of charge application for an entry clearance visa known as an EEA Family Permit.
The Home Office responded to my previous What Do They Know request regarding a derivative right of entry to the UK stating:
A person who meets the conditions of regulation 15A(4A) of the Immigration (European Economic Area) Regulations 2006 (as amended) has a ‘derivative right of residence’ and is entitled to reside in the UK for as long as they continue to meet the conditions of that regulation. Regulation 18A provides for persons with a derivative right of residence to be issued with a derivative residence card confirming that right. A person who is outside the UK but who would meet the conditions for a derivative residence card if they and the person from whom they derive a right were in the UK, can apply for an EEA family permit to facilitate their entry to the UK. An EEA family permit is not mandatory. The absence of an EEA family permit or other document confirming a right of residence may, however, present difficulties for a person in satisfying the relevant carrier that they may transport the passenger to the UK without incurring penalties. It is therefore advisable for such persons to obtain an EEA family permit prior to travelling to the UK.
They infact then went on to expand this stating:
Where a person with a derivative right of residence who does not have a derivative residence card or an EEA family permit seeks admission at port, regulation 11(4) provides for them to evidence to the Immigration Officer that they have a right of admission as a person with a derivative right of residence. In these circumstances, the person would need to present evidence that they meet the conditions set out in the relevant paragraph of regulation 15A (for Zambrano cases, this is 15A(4A) ).
An applicant would need to provide evidence that:
- they are the primary carer of a British citizen (“the relevant British citizen”);
- the relevant British citizen is residing in the United Kingdom; and
- the relevant British citizen would be unable to reside in the UK or in another EEA state if the primary carer was required to leave.
- They will also need to provide evidence to demonstrate that they meet the definition of ‘primary carer’ as set out in regulation 15A(7), (7A), (7B) and (8) of the EEA Regulations 2006.
Although Section 55 of the Borders, Citizenship and Immigration Act 2009 only ‘technically’ applies to children within the United Kingdom, the Home Office guidance and recent caselaw has emphasised the need for the act to be read in light of the way it was meant – and therefore be applied to consider the best interest’s of a child concerned within the application in any case (whether within, or outside of the UK).
For this reason, also include a detailed covering letter outlining the best interest’s of the child concerned, and why it is not in their best interest’s to be separated from yourself. Also remember to include your detailed Human Rights Submission – outlining the need to consider not only your own human right’s, but those of the British Citizen child.
Any refusal for an EEA Family Permit should be accompanied with a right of appeal.