“The definition of “person with a Zambrano right to reside” is elaborate to the point of impenetrability…..”  said the Court in Akinsanya v Secretary of State for the Home Department [2022] EWCA Civ 37 (25 January 2022).

It is difficult to disagree. The definition as drafted,  is to be read slowly and several times over until eventually its effect is fully grasped.

In Akinsanya 2, the Secretary of State contended before the Court of Appeal that the only issue before Mostyn J in Akinsanya, R (On the Application Of) v Secretary of State for the Home Department (Rev 3) [2021] EWHC 1535 (Admin) (09 June 2021), Akinsanya 1, was whether the Secretary of State had, in formulating the Annex 1 definition in Appendix EU, “erred … in her understanding of (a) the Zambrano jurisprudence and (b) regulation 16 of the 2016 Regulations” – ie, by proceeding on the basis that the Zambrano right did not arise in circumstances where the carer in question had any form of leave to enter or remain.

The Court of Appeal upheld Mostyn J’s decision by reference to the formulation of Regulation 16 of the 2016 Regulations, with the result that the Secretary of State lost her appeal.

Summary Background

The Claimant, a Nigerian national is a sole carer of a British citizen child born on 26 October 2011. She was granted a “derivative residence card” under the Immigration (European Economic Area) Regulations 2006, as amended, on 15 September 2014 on the basis that she was her son’s “Zambrano carer”.

On 4 April 2019 the Claimant applied for limited leave to remain under Appendix FM to the Immigration Rules, on the basis that she was the sole responsible parent of a British citizen child living in the UK (by reference to R-LTRPT, read with paragraph E-LTRPT.2 of Appendix FM). On 12 July 2019 the application was granted, for a thirty-month period expiring on 11 January 2022.

The reason why the Claimant chose to apply for leave to remain, rather than continuing to rely on her derivative residence right as a Zambrano carer, was that as a result of illness she was unable to work and needed to claim benefits. As a person with a derivative residence right she had only a limited entitlement to social assistance whereas once she had leave to remain she became entitled to claim mainstream benefits (the Secretary of State not having imposed a “no recourse to public funds” condition).

On 19 January 2020 the Claimant applied to the Secretary of State for indefinite leave to remain (“ILR”) under the EU Settlement Scheme (“the EUSS”). By letter from the Home Office dated 29 September 2020 her application was refused.

On 31 December 2020 the Claimant issued judicial review proceedings challenging the decision of 29 September 2020. On 9 June 2021 Mostyn J upheld her challenge.

The Secretary of State appealed to the Court of Appeal.

Appreciating the applicable law:

With reference to Appendix EU, the Claimant in Akinsanya, contended that she had at the material date “a Zambrano right to reside” and accordingly that she had completed the five-years continuous qualifying period.

In Akinsanya 2, the Court of Appeal confirmed that the issue in the appeal derived ultimately from the decision of the Grand Chamber of the Court of Justice of the European Union (“the CJEU”) in Ruiz Zambrano v Office National de l’Emploi, case no. C34/09, [2012] QB 265, which was promulgated on 8 March 2011.

Having referred to reasoning of the Court in Zambrano, the Court of Appeal clarified: “ It will be seen that the essence of that reasoning, as it applied in the actual case, is that unless the father enjoyed the right to live in Belgium, and the right to work, he would have to leave the EU, and the children would in practice have to go with him, and that that would deprive them of the substance of their rights as EU citizens under articles 20 and 21. Mr Blundell referred us to the judgment of Lady Arden (with which the other members of the Court agreed) in Patel v Secretary of State for the Home Department [2019] UKSC 59, [2020] 1 WLR 228. At para. 22 she said: “What lies at the heart of the Zambrano jurisprudence is the requirement that the Union citizen would be compelled to leave Union territory if the TCN [third country national], with whom the Union citizen has a relationship of dependency, is removed.”He also referred us to para. 30, where Lady Arden observed that “[t]he test of compulsion is … a practical test to be applied to the actual facts and not to a theoretical set of facts”.{10}

The Court in Akinsanya 2, referred to circumstances where the removal of the third country national parent would in practice mean that the EU citizen child has to leave the EU as “the Zambrano circumstances”. As regards the rights which in those circumstances may not be refused to the parent (i.e. the right to reside and to work and, where necessary, to receive social assistance), these were referred to as “Zambrano rights”.

Annex 1 to Appendix EU contains the definition of “person with a Zambrano right to reside”. The EEA Regulations referred to in the Annex 1 definition are the Immigration (European Economic Area) Regulations 2016. As noted by the Court, the Regulations have ceased to have effect, save for certain transitional purposes, since 31 December 2020 (i.e. the end of the Brexit transition period).

Regulation 16(1) of the Regulations states a person has a derivative right to reside during any period in which the person (a) is not an exempt person; and (b)  satisfies each of the criteria in one or more of paragraphs (2) to (6).

**Limb (b) of the definition of the Annex 1 definition is that that applicant should be “without leave to enter or remain in the UK”; but the Claimant in Akinsanya had had such leave since 12 October 2019.

Regulation 16(5) deals with third country national carers of British citizen children, i.e. Zambrano carers. It states the criteria in this paragraph are that —

• the person is the primary carer of a British citizen (‘BC’);
• BC is residing in the United Kingdom; and
• BC would be unable to reside in the United Kingdom or in another EEA State if the person left the United Kingdom for an indefinite period.

Regulation 7 (1) (a)) provides an “exempt person” is a person:

• who has a right to reside under another provision of the EEA Regulations;
• who has the right of abode under section 2 of the 1971 Act;
• to whom section 8 of the 1971 Act, or an order made under subsection (2) of that section, applies; or
• who has indefinite leave to enter or remain in the United Kingdom (but see paragraph (7A)). In Akinsanya, the Court pointed that it should be noted that the persons are those with indefiniteleave to remain: it does not cover those with only limited leave.

Persons with a derivative right to reside under Regulation 16 are entitled by Regulation 20 to be issued with a “derivative residence card” either for five years or for such lesser period as the Secretary of State may prescribe.

Mostyn J’s June 2021 Judgement in Akinsanya 1

Mostyn J’s judgement was considered in a previous blog post here: Primary Carers of British citizens: The Akinsanya litigation and persons with a Zambrano right to reside – UK Immigration Justice Watch Blog

In Akinsanya 2, the Court noted that Mostyn J held that the Secretary of State had erred in her understanding both of the Zambrano jurisprudence and of Regulation 16.

At paragraph 36 of its judgment, the Court summarised Mostyn J’s conclusions:

“(1) He held that a Zambrano right in EU law was not extinguished by “the existence of a concurrent limited leave to remain”: see in particular para. 51 of his judgment.

(2) He further held that, even if the jurisprudence of the CJEU did not go that far, the domestic formulation of the Zambrano right in regulation 16 was quite clearly to the effect that the right conferred by paragraph (5) was only excluded where the carer enjoyed indefinite leave to remain, since paragraph (7) refers only to ILR: see in particular para. 70 of his judgment. He rejected an argument on behalf of the Secretary of State that the relevant provisions should be read down so as to confer rights that went no further than those accorded by EU law: see paras. 67-69.

On the same date he made an order quashing the decision of 29 September 2020 and two declarations. I need only set out the terms of the first, which read:

“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’.”

Secretary of State’s arguments:

• It was submitted on behalf of the Secretary of State that the explicit rationale for the CJEU’s “creation” of Zambrano rights for third country nationals was to prevent their EU citizen children being in practice compelled to leave the EU and so deprived of their rights under Articles 20 and 21 of the TFEU.
• That being so, those rights were properly to be regarded as arising only when the third country national parent did not otherwise enjoy a right to reside in the member state in question: if they did, then there was no risk of the children being compelled to leave the EU. It followed that from the moment that she was granted leave to remain, albeit limited, the Claimant in Akinsanya enjoyed no Zambrano right to reside.
• It was contended that that analysis was supported by two decisions of the CJEU subsequent to Zambrano, ie Iida v Stadt UlmC-40/11, [2013] Fam 121, promulgated on 8 November 2012 and NA v Secretary of State for the Home Department C-115/15, [2017] QB 109.

Claimant’s arguments:

• On behalf of the Claimant, it was argued that the existence of Zambrano rights is in principle independent of whether the parent enjoys an equivalent right as a matter of domestic law. The rights in question derive directly from articles 20 and 21 of the TFEU and do not require domestic implementation. It is true that if the substance of the relevant right – whether a right to reside or to work or to receive social assistance where necessary – is accorded by domestic law they will not need to invoke their Zambrano right; but that is not the same as saying that it is in those circumstances “extinguished”, or that it only exists when required. It is wrong in principle to treat an obligation as ceasing to exist as long as it is discharged.
• Reliance was placed upon the reasoning of the Court in Sanneh v Secretary of State for Work and Pensions[2015] EWCA Civ 49, [2016] QB 455( paragraphs 166 to 169 referred to).
• It was submitted that it is clear from Sanneh, most obviously from the final sentence of paragraph 168 of Elias LJ’s judgment, that the Zambrano right to reside arises from the point when the Zambrano circumstances first arise and subsists thereafter so long as they obtain.

Court of Appeal decides the CJEU does not regard Zambrano rights as arising as long as domestic law accords to Zambrano carers the necessary rights:

In response to the Claimant’s position that a right arising under the EU Treaty must exist independently of any domestic rights which purport to reproduce it or which are to substantially the same effect, the Court had this to say between paragraphs 54 to 57 of its judgement:

• That position did not correspond to the analysis of the nature of Zambrano rights adopted by the CJEU. It is clear from Iida and NA that the Court does not regard Zambrano rights as arising as long as domestic law accords to Zambrano carers the necessary right to reside (or to work or to receive social assistance).
• As the Court recognises ( paragraph 72 of the judgment in Iida) the right of third country nationals to reside in a member state is normally a matter for that state. Zambrano rights are for that reason exceptional. They are not typical Treaty rights, since they arise only indirectly and contingently in order to prevent a situation where EU citizen dependants are compelled to leave the EU. That being so, it makes sense to treat them as arising only in circumstances where the carer has no domestic (or other EU) right to reside (or to work, or to receive necessary social assistance)
• The approach was not inconsistent with Sanneh. In that case, unlike the claimant in Akinsanya, the claimant had no right to reside under domestic law, and the issue was whether her Zambrano right to reside arose prior to the point of imminent removal. Elias LJ ‘s conclusion in Sanneh was, in effect, that the Zambrano circumstances arose as soon as the claimant had no leave to remain and was thus (as a matter of domestic law) under a duty to leave and liable to removal ( in particular paragraph 169 of Sanneh). The Court was not considering a case where the claimant enjoyed leave to remain as a matter of domestic law. In such a case, on the CJEU’s analysis, the Zambrano circumstances do not obtain, and Elias LJ’s observations had no purchase.

Although the Court in Akinsanya 2 indicated that the Secretary of State’s submissions were preferred it was considered however, that did not answer the question whether the Secretary of State misdirected herself in framing the definition in the EUSS. It depended upon what she was intending to achieve.

The Court of Appeal stated that the fact remained that if at any time a Zambrano carer loses their right to reside as a matter of domestic law, the Zambrano right will arise (assuming that the effect of the carer leaving will be that the EU citizen child also has to do so): Zambrano is always waiting in the wings, and so long as the Zambrano circumstances obtain the carer can never be put in a position where their residence is unlawful.

Court of Appeal decides that the language of domestic EEA Regulation 16 (7) (c) (iv) is simply too clear to allow it to be construed as covering persons with limited leave to remain:

In relation to the construction of Regulation 16 of the EEA Regulations, the Court in Akinsanya 2, noted that the issue was whether the Secretary of State in framing the relevant definition in Annex 1 of the EUSS misunderstood the effect of Regulation 16 of the EEA Regulations, which was intended to give effect to the Zambrano jurisprudence in UK law.

The Claimant’s case was that limb (b) of the Annex 1 definition is inconsistent with the definition of “exempt person” in Regulation 16 (7). Head (iv) of that definition covers a person “who has indefinite leave to enter or remain in the United Kingdom”; but it says nothing about persons with only limited leave. The Claimant contended that persons with limited leave are accordingly not exempt persons and by virtue of paragraph (1) (b) are entitled to a derivative right to reside, alongside their leave to remain, so long as they satisfy the criteria under one of paragraphs (2)-(6).

On behalf of the Secretary of State, it was accepted that the natural meaning of Regulation 16 was indeed that a person with limited leave to remain is entitled to a derivative right to reside, but it was submitted (a) that such a reading would mean that the Secretary of State in making the Regulations had accorded rights to carers of EU citizen children that go beyond their entitlement in EU law; and (b) that it followed that Regulation 16 should be construed, despite the natural reading, in such a way as to avoid that result and to limit the rights conferred under it to carers who did not otherwise have leave to remain.

The Secretary of State argued that there was a presumption against “gold-plating” – that is “going beyond the minimum necessary to comply with a Directive”.

The Court reasoned as follows, including their conclusions:

• It was observed by the Court that at the time that the Amendment Regulations were made, paragraph 10 of the Guidance issued to UK Border Agency staff at the time of the 2012 amendments read: “Where someone has limited leave (and so is not listed as one of the exempt categories above) and can demonstrate they meet all other requirements of Regulation 15A, then they can acquire a derivative right of residence.”
• It did not accept that there is any general presumption against “gold-plating”.
• Although the Court was prepared to accept that in making the Amendment Regulations, and thus also the relevant parts of Regulation 16, it was likely that the Secretary of State intended, in a broad sense, to do no more than implement the requirements of the Zambrano decision, matters were however not as simple as that.
• That required the Secretary of State to take a view as to what those requirements actually amounted to. It may well be that her initial view of the effect of Zambrano was in accordance with the Claimant’s submissions before the Court: Iida and NA had not been decided when the Amendment Regulations were made.
• A broad intention not to gold-plate does not exclude a recognition that the practical business of adapting an EU right into a domestic scheme may mean going rather beyond the minimum requirements of the right at the margins. The Court stated that may be that the Secretary of State took the view that allowing a Zambrano right to reside to those who already had limited leave to remain was more straightforward than having to consider whether particular forms of leave to remain, and in particular the conditions about working to which they might be subject, were fully consistent with Zambrano rights.
• Whatever the contextual considerations, the language of Regulation 16 (7) (c) (iv) is simply too clear to allow it to be construed as covering persons with limited leave to remain.
• The explicit reference to persons with indefinite leave to remain necessarily precludes its application to persons with limited leave. As Mostyn J stated at paragraph 72 of his judgment, the Secretary of State was seeking to imply words into the provision which completely change its scope and meaning.
• The passage from the Home Office guidance quoted above establishes beyond doubt that this was not a case of drafting error: the Secretary of State intended persons with limited leave to be entitled to a derivative right to reside, even if that intention may have been based on an erroneous view of what Zambrano

The Court of Appeal concluded that its rejection of ground 2 meant that it would in substance dismiss the appeal, despite the conclusion on ground 1.

It was held that Mostyn J’s order quashing the Secretary of State’s decision of 29 September 2020 stood.

Commentary

What the position can and should be following Akinsanya:

The Claimant failed in seeking to run the argument that had succeeded initially in the lower courts: what saved the day was the argument related to the domestic formulation of the Zambrano right in the 2016 EEA Regulations.

At paragraph 51 of Akinsanya 1, Mostyn J concluded:

“My conclusion is that nothing decided in the CJEU or domestically since the decision in Zambrano supports the theory that the existence of a concurrent limited leave to remain of itself automatically extinguishes a claim for Zambrano residence. On the contrary, it is clear to me 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 Court of Appeal in Akinsanya 2 however did not agree and as per paragraph 54 and 55 of its judgement, considered that:

• the CJEU does not regard Zambrano rights as arising as long as domestic law accords to Zambrano carers the necessary right to reside (or to work or to receive social assistance.
• Zambrano rights are not typical Treaty rights: it makes sense to treat them as arising only in circumstances where the carer has no domestic (or other EU) right to reside (or to work, or to receive necessary social assistance).

Following Akinsanya and the basis upon which she maintained her “win”, the correct legal position can and should be that both those with leave to remain and those without, by reference to the EEA Regulation, also fall within the definition of “person with a Zambrano right to reside” for the purpose of applications under the EUSS Scheme.

What the Secretary of State should now be doing is to amend Appendix EU and do so lawfully.

What of the Secretary of State’s Guidance?

It is apparent from the beginning of the judgement in Akinsanya 1 that Mostyn J noted:

“2.Essentially I have to decide whether the Secretary of State (then the Rt. Hon. Sajid Javid MP), in promulgating Appendix EU to the Immigration Rules on 7 March 2019, erred in law in his understanding of the scope of:

1. i) The Zambrano jurisprudence; and
2. ii) Regulation 16 of the Immigration (European Economic Area) Regulations 2016 (SI 2016/1052) (“Regulation 16”).

3.If the answer is yes then it is agreed that the following relief should be awarded:

1. i) An order quashing the decision of 29 September 2020;
2. ii) A declaration that the Secretary of State erred in law when framing in Annex 1 to Appendix EU to the Immigration Rules the definition of a “person with a Zambrano right to reside” under paragraph (b) as “a person …. without leave to enter or remain in the UK, unless this was granted under this Appendix” (“para (b)”)*;

iii) A declaration that the Guidance issued by the Secretary of State “Free Movement Rights: derivative rights of residence” (version 5.0 of 2 May 2019) and “EU Settlement Scheme: person with a Zambrano right to reside” (version 4.0 of 27 April 2021) are legally erroneous insofar as they state that a Zambrano right to reside is not available to a person if he/she has limited leave to enter or remain in the UK; …….”

By reference to Mostyn‘s initial Order of 9 June 2021, a declaration was also made that:

“2. 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 referred to Guidance is still in publication and unamended.

Akinsanya 2 does not consider issues related to the legally erroneous nature of the Secretary of State’s Guidance.  The answer however seems to lie in the Court of Appeal making it clear: “As I understand it, the reconsideration referred to in the order of 17 June 2021 has not been undertaken pending this appeal. It will no doubt now proceed. Nothing in this judgment should be taken as expressing any view about how the Secretary of State can or should amend the terms of the EUSS, as to which we heard no argument”. {70}

What the Court of Appeal was prepared to do as indicated by paragraph 69 of its judgement, was to modify by agreement with Counsel, the terms of the declaration of Mostyn J’s Order as follows:

“The Secretary of State erred in law in her understanding of regulation 16 of the Immigration (European Economic Area) Regulations 2016 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 Order of 17 June 2021 in Akinsanya 1 includes amongst other issues, the following:

“5. This order and the order of 9 June 2021 shall be appended to the judgment dated 9 June 2021 which shall be republished on the Bailii website”.

It is therefore expected that the Secretary of State will have regard to the expressed terms of the Orders and will, amongst other issues, proceed to issue new or amended Guidance, alongside the necessary amendments to Appendix EU.