On 9 June 2021, the High Court delivered a judgment related to Zambrano applications under the EUSS on the R (on the application of Akinsanya) v Secretary of State for the Home Department.
The High Court found that the Secretary of State has erred in law when framing her definition of a ‘person with a Zambrano right to reside’ under the EU Settlement Scheme (EUSS).
It was held that an individual still has a right to reside on Ruiz Zambrano grounds even if they have limited leave to remain on another basis, such as under Article 8 of the European Convention on Human Rights (ECHR).
The judgment gives a hope to those non-EU citizens who are primary carers of British citizens and wish to apply under the EUSS. It is also a welcome news for those who already have permission to remain under another part of the Immigration Rules.
The court also acknowledged that the ten-year route to settlement for family life is significantly more precarious than indefinite leave to remain under the EUSS, as applicants are denied recourse to public funds (unless destitute) and must re-apply for leave every 30 months for hefty fees.
What is a Zambrano carer?
A ‘Zambrano’ carer is a non-EEA citizen whose residence is required in order to enable a child or dependant adult, who is British, to live in the UK.
The concept of a ‘Zambrano carer’ originated from the decision in Ruiz Zambrano v Office National de l’Emploi in 2012. The Court of Justice held that the Member States should not deny residence to non-EU national parents who are primary carers of minor citizens of the same Member State.
What was wrong with the current policy?
The Ruiz Zambrano decision was implemented by the Secretary of State with the insertion of a new regulation into the Immigration (European Economic Area) Regulations 2006, SI 2006/1003. Later, these Regulations were replaced by SI 2016/1052 (the EEA Regulations 2016).
Under s16(7)(C), the regulation specifically exempted carers with indefinite leave to remain from the right of residence on Ruiz Zambrano grounds. However, those with limited leave to remain were implicitly included. This was expressly confirmed by the Secretary of State in guidance issued in 2012.
However, in May 2019, the Secretary of State carried out a completely different interpretation of the regulation. Changing his opinion about the scope of the Zambrano right to reside, he amended the guidance and emphasised that such right do not apply to those who had either been granted or could be entitled to limited leave to remain on other grounds, such as Article 8 ECHR.
Similar interpretation was carried through into the EUSS in Appendix EU of the Immigration Rules, which includes that Zambrano carers are only entitled to settled or pre-settled status if they do not have any other leave to remain. The Home Office guidance added that Zambrano carers cannot have leave to remain under Appendix EU if they could get other leave to remain.
Based on this guidance, the claimant, a Nigerian lone parent of a British citizen child, was refused indefinite leave to remain under Appendix EU in Akinsanya.
What did the court decide?
The court considered the following two issues:
- whether the Secretary of State had erred in his interpretation of the Zambrano jurisprudence
- whether the Secretary of State had erred in his interpretation of the EEA Regulations 2016.
In regard to the first issue, after summarising the EU and domestic jurisprudence, Mostyn J stated that there is no basis for the Secretary of State’s assertion that a Zambrano right is extinguished by the existence of a current limited right to remain and work awarded under national law. On the contrary, it was clear from the facts of Ruiz 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 regarded the Secretary of State’s argument as ‘certainly illogical’.
As to the second issue, the court found that the Regulations ‘were impeccably drafted and accurately reflected the true legal scope of the decision in Zambrano’. Mostyn J considered it ‘troubling, to say the least’ that the Secretary of State chose to amend the instructions on the scope of the right, without considering the 2016 Regulations.
It was concluded that the restriction imposed on Zambrano carers applying under Appendix EU if they had any other leave to remain, was unlawful.
Overall, the judgment clearly emphasised that Zambrano carer’s rights to reside under EU law are not affected by a grant of limited leave to remain, or by the possibility of getting limited leave to remain.
What happens next?
Following the judgment, it is to be hoped that the Secretary of State will reconsider her guidance and redraft Appendix EU of the Immigration Rules.
However, the Home Office is seeking permission to appeal the judgment to the Court of Appeal. Hence, we cannot expect any changes to be made to the Appendix EU yet. This leaves Zambrano carers who have pending applications or are wanting to apply under EUSS in an extremely uncertain situation.
A consent order was made on 17th June 2021, under which the Home Office agreed to extend the time for Zambrano applications under the EUSS.
The consent order confirms the following points:
- The Home Office will reconsider Appendix EU as it applies to Zambrano carers. Until a decision is reached, the Home Office has suspended decisions on Zambrano cases that are affected by the Akinsanya.
- Zambrano carers can have Appendix FM and EUSS applications pending at the same time, as long as both applications are based on the same circumstances, for example, as the primary carer of a British citizen.
- After the Zambrano EUSS rules are reconsidered, the Home Office will publish a policy which will make it possible for applicants to submit an application after 30 June 2021. The Home Office will announce the new deadline for these applications. It is likely to be at least 6 weeks after the decision is made.
- Those who applied before 30 June 2021 will be issued with a certificate of application confirming their entitlement to work, study and rent in the UK until final determination of their Zambrano application is made.
This will give some relief to applicants as the consent order means that missing the 30 June 2021 deadline will not affect an applicant’s chances of getting leave to remain as a Zambrano carer under EUSS.
However, the consent order does not mean that there is no deadline. The deadline was still 30 June 2021. Those who did not have any permission to be in the UK should have tried to submit an application before 30 June — including so that they can work in the UK. This is to ensure that their rights remained protected because the derivative right to reside under the EEA Regulations ended on 30 June 2021.
Furthermore, the Home Office is still yet to make a decision about those who apply after 30 June 2021.
Where a person failed to meet the deadline applicable to them wishes to apply to the EU Settlement Scheme, they must make a valid application under Appendix EU on the relevant paper application form and provide information with the application setting out reasonable grounds for failing to meet the deadline.
A paper application form can be requested by contacting the EU Settlement Resolution Centre online.
If you need advice on making an application after the deadline get in touch with a member of our team.