This post discusses an important Court of Appeal judgment of Akinsanya v Secretary of State for the Home Department [2022] EWCA Civ 37 on the definition of Zambrano carers and is of particular relevance to parents of British children applying as Zambrano carers under the European Union Settlement Scheme (EUSS).
What is a Zambrano carer?
As defined in a case of the European Court of Justice in 2011, a Zambrano carer is a third country national (non-EU national) caring for an EU citizen who is granted leave on the basis that failure to do so would mean that the dependent citizen would have to leave the EU.
Before the UK left the EU, it implemented the impact of this judgment by adding this basis of leave for carers of British children to the EEA Regulations 2016. This continued under Appendix EU.
It is worth noting, however, that Annex 1 of Appendix EU excludes those who already have either limited leave or indefinite leave to remain from applying on this basis.
What is this case about?
This case concerned Ms Akinsayna, a Nigerian national and sole carer of a British citizen child born on 26 October 2011. On 15 September 2014, she was granted a residence card under the EEA Regulations on the basis that she was her son’s ‘Zambrano carer’. This card was valid for five years and subject to the condition that she would not be able to claim benefits.
In 2017, Ms Akinsayna stopped working due to ill health and when her landlord began eviction proceedings against her in January 2018, she applied for the ‘no recourse to public funds’ condition to be lifted due to her precarious financial situation. On 12 February 2018, this was refused on the basis that Zambrano carers are not eligible to receive public funds and she was directed to make an application for leave to remain as the sole parent of a British child under Appendix FM.
On 4 April 2019, Ms Akinsanya duly applied for leave to remain under Appendix FM. On 12 July 2019, 30 months’ limited leave to remain under Appendix FM was granted until 11 January 2022, this time without the condition preventing her from claiming public funds.
When EUSS applications opened ahead of the UK’s departure from the EU, Ms Akinsanya applied 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 in the UK.
On 29 September 2020, the Home Office refused her application as she was excluded from making a Zambrano application as she had already been granted limited leave to remain. Ms Akinsanya challenged this decision by way of judicial review and her case included the argument that having limited leave to remain should not preclude her from applying as a Zambrano carer.
What did the High Court say?
Justice Mostyn decided the Secretary of State had misunderstood both EU case law and the 2006 Regulations when defining Zambrano carers in Appendix EU; holding limited leave to remain does not extinguish or preclude a Zambrano right of residence under either EU jurisprudence or regulation 16. In addition, he highlighted that regulation 16 only explicitly excluded those with indefinite leave to remain.
After the judgment, in a Consent Order date 17 June 2021, the Secretary of State agreed to reconsider the definition of Zambrano carers subject to appealing the High Court decision to the Court of Appeal. She appealed on two grounds:
- The Court was wrong to conclude that a Zambrano right under EU law was not extinguished by the existence of a concurrent limited leave to remain;
- The Court erred in finding that regulation 16 could not be construed so as to exclude persons with limited leave to remain from having a Zambrano right of residence.
What did the Court of Appeal decide?
With respect to the first ground, the Court agreed with the Secretary of State who put forward EU case law to support the notion that Zambrano rights do not arise where rights to reside, to work or to receive social assistance are accorded by domestic law. Zambrano rights are exceptional and only arise to prevent a situation where EU citizen dependants would be compelled to leave the EU. As the Court put it, Zambrano rights are “waiting in the wings”.
As to the second ground, the Court agreed with the lower court: regulation 16 clearly excludes those with indefinite leave to remain but cannot be construed so as to exclude persons with limited leave to remain from having a Zambrano right of residence. In dismissing the second ground of appeal, the Court rejected the Secretary of State’s argument that there was a presumption against going beyond the minimum necessary to comply with an EU law obligation.
Interestingly, the Court also held that whether she erred in formulating the definition of Zambrano carers depended upon what she intended to achieve: if she intended to grant leave under Appendix EU to individuals who directly relied on Zambrano rights, then her approach was consistent with EU case law, as such rights did not arise whilst a Zambrano carer had limited leave to remain. However, if she intended to grant leave to all carers whose removal would result in their EU citizen dependant having to leave the UK (at which point Zambrano rights would arise), then excluding carers who have limited leave to remain on another basis was inconsistent with EU case law.
What does this mean for Zambrano carers?
For potential applicants with limited leave, as the Court of appeal still found that there was an error of law in relation to the Secretary of State’s understanding of regulation 16, the SSHD’s reconsideration of the definition of person with a Zambrano right to reside will now proceed. The Home Office initially agreed to carry out this reconsideration by 25 April 2022. However, they have since asked for further time to reconsider and now have until 13 June 2022.
In any event, the Home Office has agreed that they will accept Zambrano carer EUSS applications for a specified period following the reconsideration. The length of this period is not known, but according to the consent order, it will be at least 6 weeks.
If you may be affected by this judgment and would like to discuss your immigration options, please do not hesitate to get in touch using the online enquiry form on our website or by calling 01865 770 111.