Primary Carers of British citizens: The Akinsanya litigation and persons with a Zambrano right to reside

 “It’s is now time for the Home Office to remove the offending parts in Guidance Derivative rights of residence. The Guidance appears misleading and results, as intended, in a discouragement of or an unlawful bar on entitled would- be applicants from relying upon the EEA Regulations”, so concluded a blog post of nearly one and half years ago- Automatic/Blanket Zambrano refusals: FTT Judge finds amended Zambrano Guidance an inaccurate reflection of the 2016 EEA Regulations | UK Immigration Justice Watch Blog

Following Akinsanya, R (On the Application Of) v Secretary of State for the Home Department (Rev 3) [2021] EWHC 1535 (Admin), that is what the Secretary of State may well have to do, ie amend or publish new Guidance affecting those with  a Zambrano right to reside.

Zambrano and Appendix EU

As is widely known, since 1 May 2019, a ‘person with a Zambrano right to reside’ has been able to apply for settled status (indefinite leave to enter or remain in the UK) or pre-settled status (limited leave to enter or remain in the UK) under the EU Settlement Scheme.

In the case of Zambrano, the CJEU found that a European Union (EU) Member State cannot refuse a person the right to reside in that State, where to do so would deprive their dependent EU citizen children (who reside and are nationals of that State) of genuine enjoyment of the substance of their EU citizenship rights by forcing them to leave the European Economic Area (EEA).

The primary carer of a British citizen will have a derivative right to reside in the UK based on Zambrano if both the following apply:

• the British citizen is also residing in the UK
• the British citizen would be unable to reside in the UK or in an EEA Member State or Switzerland, if the primary carer left the UK for an indefinite period

The conditions to be satisfied for a derivative right to reside based on Zambrano are set out in regulation 16(5) of the 2016 EEA Regulations.

Appendix EU refers partly to the relevant provisions of the EEA Regulations when defining a ‘person with a Zambrano right to reside’. Therefore, the applicant will be a ‘person with a Zambrano right to reside’ under Appendix EU where, they are resident for a continuous qualifying period in the UK with a derivative right to reside by virtue of regulation 16(1) of the EEA Regulations, satisfying several criteria.

The Akinsanya litigation

The case of Akinsanya, R (On the Application Of) v Secretary of State for the Home Department (Rev 3) [2021] EWHC 1535 (Admin) (09 June 2021), concerned the decision of the Secretary of State on 29 September 2020 refusing Ms Akinsanya’s application under the EU Settlement Scheme (“EUSS”) as a ‘person with a Zambrano right to reside‘.

Deliberately calculated amendments to the Regulations and Guidance:

The Court made references to the following:

• Regulation 15A of the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003) was noted to have been impeccably drafted and accurately reflected the true legal scope of the decision in Zambrano, namely that holding indefinite leave to remain in the UK, and nothing but such indefinite leave, would automatically debar an application from being made for a Zambranoderivative right of residence under Regulation 15A. Regulation 15A, as well as the Guidance issued at that time accurately stated that a person with limited leave would be entitled to apply for a Zambrano derivative right of residence. For this reason such a person was not designated as “exempt”.
• The Immigration (European Economic Area) Regulations 2016 (SI 2016/1052) replaced the 2006 Regulations.  When making the 2016 Regulations the Secretary of State decided to maintain in Regulation 16(7)(c)(iv) only indefinite leave as the criterion for an exempt person; there was no hint that at that point she considered that the definition of exempt person should be expanded to catch all those with limited leave to remain.
• On 7 March 2019 Secretary of State promulgated the EUSS. She laid before Parliament on that same day the Immigration (European Economic Area Nationals) (EU Exit) Regulations (SI 2019/468), which came into force three weeks later on 28 March 2019. These made amendments to the 2016 Regulations. Specifically, a new Regulation 16(7A) was added which stated: “(7A) Leave to enter, or remain in, the United Kingdom under the 1971 Act which has been granted by virtue of Appendix EU to the immigration rules is not to be treated as leave for the purposes of paragraph (6)(b) or (7)(c)(iv)”. Therefore, on 7 March 2019 the Secretary of State modified the definition of an exempt person to exclude someone who has been granted leave to remain in the UK under the EUSS. It was noted by the Court that the Secretary of State modified the definition of leave to allow someone granted leave under the EUSS nonetheless to apply for a Zambrano derivative right to reside, yet she chose not to modify any other aspect of the regime governing leave
• Paragraph (b) in Annex 1 of Appendix EU to the Immigration Rules was promulgated on 7 March 2019 and defined a person with a Zambrano right to reside as a:  “a person who has satisfied the Secretary of State, including (where applicable) by the required evidence of family relationship, that, by the specified date, they are (and for the relevant period have been), or (as the case may be) for the relevant period in which they rely on having been a person with a Zambrano right to reside (before they then became a person who had a derivative or Zambrano right to reside) they were:
  …. (b) without leave to enter or remain in the UK, unless this was granted under this Appendix
• On 2 May 2019, the Secretary of State issued Guidance documents under challenge namely “Free Movement Rights: derivative rights of residence” (version 5.0). This stated that people with limited leave to remain could not apply for a Zambranoderivative right to reside and provided that: “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.…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 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.” The Court stated that it was it troubling, to say the least, that this instruction should have been issued requiring staff to ignore the clear terms of the 2016 Regulations, and therefore to act unlawfully.
• Home Office Guidance, “EU Settlement Scheme: person with a Zambranoright to reside” (version 4.0 of 27 April 2021) states: “A Zambrano right to reside is only available to a person who has no other means to remain lawfully in the UK as the primary carer of a dependent British citizen, or as a dependant of that primary carer. As set out in sub-paragraph (b) of the definition of a ‘person with a Zambrano right to reside’ in Annex 1 to Appendix EU, an applicant cannot meet that definition if they have (or, as the case may be, for the relevant period had) leave to enter or remain in the UK, unless this was granted under Appendix EU. An applicant cannot therefore meet that definition if they have (or, as the case may be, for the relevant period had) leave to enter or remain granted under another part of the Immigration Rules (such as Appendix FM) or on a discretionary basis outside the Rules”.

How the litigation arose

It was established that Ms Akinsanya, a sole carer of a British citizen child was granted 30 months limited leave to remain under Appendix FM until 11 January 2022, with no condition preventing recourse to public funds. Her subsequent application of 29 January 2020, under the EU Settlement Scheme for indefinite leave to remain under Appendix EU of the Immigration Rules, on the basis that she was a Zambrano carer with five years’ continuous residence was refused by the Secretary of State in September 2020. The Secretary of State decided that the claimant was not eligible for the EUSS because she had already been granted limited leave to remain, and so was barred by paragraph (b) of the definition of ‘person with a Zambrano right to reside’ in Appendix EU.

Ms Akisanya sought an order in the Administrative Court quashing the decision made by the Secretary of State on 29 September 2020 refusing her application under the EU Settlement Scheme (“EUSS”) as a ‘person with a Zambrano right to reside‘. She also sought other declaratory and quashing relief.

The question the Court had to decide, was whether the right to reside was automatically extinguished if there was, at the time that it is claimed, a concurrent limited leave to remain.

The Secretary of State’s position was that the true meaning of Zambrano is that any national award of limited leave to remain acts to thwart an application for a Zambrano derivative right to reside.

A win in the Administrative Court

In allowing the Claimant’s application for judicial review, the Court concluded:

• The Zambrano principle is simple and clear. An EU citizen, who happens to be a small child, is entitled to enjoy the full benefits of EU citizenship, of which the principal one is living in EU territory. If her primary carer were to be expelled from EU territory, and if in the real world the EU citizen would have to accompany the carer, then the EU citizen is denied the benefits of her citizenship. Therefore, her carer has to be granted residence in the relevant EU state.
• In the Court’s judgement, a proper analysis of the EU cases clearly demonstrates that the court did not consider a limited leave to remain under national law to be a Zambranoextinguishing factor
• Nothing decided in the CJEU or domestically since the decision in Zambranosupports the theory that the existence of a concurrent limited leave to remain of itself automatically extinguishes a claim for Zambrano On the contrary, it is clear from the facts of Zambrano itself that the CJEU tacitly acknowledged that a limited national leave to remain, and a wider Zambrano right to remain, in many cases can and will coexist.
• The Secretary of State erred in law when she formulated paragraph (b).

In relation to issues raised as regards amendment of the 2016 EEA Regulations, the following came under consideration:

• It was noted that the argument advanced on behalf of the Secretary of State was that the Court should construe the 2016 Regulations so that they conform with what she maintains to be the true scope of the Zambrano The Court indicated that it had already rejected the Secretary of State’s argument that the true scope of the Zambrano jurisprudence does not extend to people with limited leave to remain.
• If the natural meaning of the words in the domestic measure appears to grant its users an uncovenanted bonus then the corrective remedy lies in the hands of the rule makers and Parliament, and not in the hands of the judges.
• Even if the Court was wrong about the juridical scope of the Zambrano decision, its judgment nonetheless was that neither a textual nor a contextual construction of Regulation 16 can yield a meaning which so radically reduces its reach.  It would amount to judicial amendment not interpretation.
• What was being suggested was to add words( i.e limited leave) to a domestic statutory instrument which have the effect of stripping away rights from what may be a substantial cohort of applicants.
• It was the Court’s judgment that, irrespective of the true scope of the Zambrano jurisprudence, the natural, fair, reasonable and plain meaning of the words of Regulation 16 entitle an applicant under the 2016 Regulations for a derivative right to reside to have the application determined by reference to the prescribed eligibility criteria in that Regulation rather than being struck out peremptorily. The existing words in Regulation 16 are clear and the proposed amendments go well outside the permissible range of meaning of those words.

Why the Secretary of State has not yet made the amendments to the Regulations herself

In Akinsanya, the Court asked why the Secretary of State was asking the Court to do her amending for her: if the Secretary of State was so anxious that persons with limited leave to remain should also be designated as exempt persons, it would be the easiest thing for the 2016 Regulations to be amended again.

The Court was informed by those representing the Secretary of State that this would not be straightforward as the 2016 Regulations had in fact been revoked by the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 Sch.1(1) para.2(2) with effect from 31 December 2020, but the revocation has effect subject to savings specified in two statutory instruments made pursuant to that Act.

The Court noted in summary, that the effect of the savings is to allow people in the position of the claimant whose rights had vested prior to implementation day on 31 December 2020 to make their claim, however, it was apparently, not straightforward to make amendments to these preserved provisions.

Declarations by the Court and a quashing order

The Court made the following declarations:

• The Secretary of State erred in law when providing, in Annex 1 to Appendix EU to the Statement of Changes to the Immigration Rules HC 395 as amended, that the definition of a “person with a Zambrano right to reside” includes paragraph (b) “a person …. without leave to enter or remain in the UK, unless this was granted under this Appendix.”
• The Guidance issued by the Secretary of State (1) “Free Movement Rights: derivative rights of residence” (version 5.0 of 2 May 2019) and (2) “EU Settlement Scheme: person with a Zambrano right to reside” (version 4.0 of 27 April 2021) is legally erroneous insofar as it states that a person who has limited leave to enter or remain in the UK cannot also have a derivative right to reside by virtue of regulation 16(1) of the Immigration (European Economic Area) Regulations 2016, by satisfying the criteria in regulation 16(5) of those Regulations.

The Secretary of State’s decision of 29 September 2020 refusing the Claimant’s indefinite leave to remain under Appendix EU of the Immigration Rules was quashed.

Developments: The Consent Order of 17 June 2021

The Claimant’s application for further relief was adjourned to 17 June 2021.

Appended to the Akinsanya judgement published on 9 June 2021, is a Consent Order dated 17 June 2021.

The Consent Order provides as follows, amongst other matters:

a.The Secretary of State is to reconsider the relevant provisions of Appendix EU of the Immigration Rules (“Appendix EU”);

b.The Secretary of State will not determine applications made under Appendix EU on the basis that the applicant is or was a person with a Zambrano right to reside (‘Zambrano application’) and is affected by the Court’s judgment, until after she has completed her reconsideration of Appendix EU;

c.In paragraph (a)(v) of the definition of ‘required date’ in Annex 1 to Appendix EU the reference to “limited leave to enter or remain granted under another part of these Rules or outside the Immigration Rules which has not lapsed or been cancelled, curtailed or invalidated” includes leave to enter or remain granted under another part of these Rules or outside the Immigration Rules which is extended by operation of section 3C of the Immigration Act 1971;

d.To the extent that paragraph 34BB of the Immigration Rules applies to a Zambrano application, it will be disregarded where there is (i) an outstanding valid Zambrano application for leave to remain under Appendix EU and a valid application for leave to remain is subsequently made under Appendix FM based on the same circumstances; and (ii) an outstanding valid application for leave to remain under Appendix FM and a valid Zambrano application for leave to remain is subsequently made under Appendix EU based on the same circumstances as the Appendix FM application;

e.The Secretary of State intends to implement and publicise a policy under which, for a reasonable period of time which she will specify, but which will be for a period of not less than six weeks after publication of the outcome of her reconsideration referred to at a. above, Zambrano applications made on or after 1 July 2021 will be deemed, under the definition of ‘required date’ in Annex 1 to Appendix EU, to have reasonable grounds for the person’s failure to make that application at the earlier date relevant under that definition;

f.In accordance with paragraph (c) of the definition of “EEA Regulations” in Annex 1 of Appendix EU, the question of whether an applicant is a person with a Zambrano right to reside as defined in Appendix EU in respect of a period on or after 1 July 2021 is to be determined on the basis of the Immigration (European Economic Area) Regulations 2016 as they had effect immediately before they were revoked, and, where the context requires it, on the basis that they had not been revoked;

g.Where a valid Zambrano application is made on or before 30 June 2021, the Secretary of State provides the applicant with a certificate of application confirming their entitlement to work, study and rent a place to live, until final determination of their Zambrano application;

h.The Secretary of State is considering the position in relation to the issue of similar certificates for applications made under Appendix EU on or after 1 July 2021, including in relation to Zambrano applications;

i.Before expiry of the period referred to in e., above, where persons are encountered by Immigration Enforcement on or after 1 July 2021 who may be eligible for leave as potential Zambrano applicants under Appendix EU in light of the judgment, such persons will be provided with written notice giving them an opportunity to make a valid application under Appendix EU, normally within 28 days of the date of the written notice.

**In relation to further information as to the effect of the Consent Order and other helpful clarifications as well as a further point of reference in relation to the Akinsanya litigation, the information provided by Hackney Community Law Centre is of assistance: www.hclc.org.uk/2021/06/zambrano-carers-and-the-euss-scheme-what-you-need-to-know/

Conclusion

What the Secretary of State has since 2019 been hard at work on, i.e a deliberate thwarting of would-be Zambrano applicants, has been stalled. Whatever the outcome of the pending litigation in the Court of Appeal, for now at least, the Secretary of State should accept that the Akinsanya litigation has opened the door wide open for applications from hundreds or even thousands of Zambrano primary carers of British citizens- not only from those with limited leave to remain, but applicants without any leave, including third country primary carers subject to deportation.