Ms Akinsanya, a Nigerian National, is the sole carer of four children, including her eldest son, a British citizen child born on 26th October 2011. On 15th September 2014 she was issued a ‘derivative residence card’ under the EEA Regulations on the grounds that she was her son’s ‘Zambrano carer’.
What is a Zambrano carer?
A Zambrano carer, as defined by the European Court of Justice in 2011, is a third-country national (i.e. a non-EU national) caring for an EU citizen, whose residence is needed on the grounds that failing to do so would force the dependent individual to leave the UK or EU. The UK incorporated the implications of this decision into the EEA Regulations 2016 by including this ground for leave for caregivers of British children and is subsequently continued in Appendix EU.
NB: Annex 1 of Appendix EU prohibits persons with either restricted or indefinite leave to remain from applying on the basis that they are a Zambrano carer.
What is this case about?
Ms Akinsanya’s residence card was valid for five years; however, this was subject to her having ‘no recourse to public funds.’ Ms Akinsanya ceased working in 2017 owing to illness, and when her landlord initiated eviction proceedings against her in January 2018, she requested that the ‘no recourse to public money’ restriction be relaxed due to her difficult financial situation. On 12th February 2018, this was denied on the grounds that Zambrano caregivers are ineligible for public funds.
Ms Akinsanya then requested permission to remain under Appendix FM of the Immigration Rules on 4th April 2019 on the basis that she was the sole responsible parent of a British citizen child living in the UK. This application was successful, and she was granted 30 months limited leave to remain on 12th July 2019 until 11th January 2022.
Following this, Ms Akinsanya filed for indefinite leave to remain under Appendix EU of the Immigration Rules when EU Settlement Scheme (EUSS) applications opened prior to the UK’s withdrawal from the EU, citing her status as a Zambrano carer with five years’ continuous residence in the UK.
Her application was refused by the Home Office on 29th September 2020 under the condition that she was barred from submitting a Zambrano application since she had already been given limited leave to remain.
Ms Akinsanya initiated judicial review proceedings arguing that having restricted leave to remain should not prevent her from enrolling as a Zambrano carer. On 9th June 2021 Mostyn J upheld her challenge.
The judgement of Mostyn J:
When defining Zambrano carers in Appendix EU, the Secretary of State misinterpreted EU case law and the 2006 Regulations, according to Mostyn J, since possessing limited leave to remain does not prevent a Zambrano right of residence under either EU law or Regulation 16. Furthermore, he emphasised that Regulation 16 only expressly excluded those with indefinite leave to remain.
Following this, the Secretary of State agreed to reconsider the definition of a Zambrano carer, subject to appealing the High Court judgement to the Court of Appeal.
The Secretary of State filed an appeal on two grounds:
- The Court erred in concluding that the existence of limited leave to remain did not invalidate a Zambrano right under EU law.
- The Court erred in concluding that Regulation 16 could not be interpreted to bar those with limited leave to remain from obtaining a Zambrano right of residency.
Decision of the Court of Appeal:
Regarding the first ground, the Court of Appeal agreed with the Secretary of State in respect to the fact that Zambrano rights are exceptional and occur only to avoid the scenario where an EU citizens dependent are forced to leave the EU, not when domestic law grants the right to reside, work or receive public funds. As stated by the Court, Zambrano rights are ‘waiting in the wings.’
The Court also held that whether the Secretary of State had fallen short in defining Zambrano carers depended on her intent: if she intended to grant leave under Appendix EU to individuals who directly relied on Zambrano rights, her approach was consistent with EU case law, as such rights did not arise while a Zambrano carer had limited leave to remain. However, if she wanted to provide permission to all carers whose removal would force their EU citizen dependant to leave the UK (at which point Zambrano rights would apply), then excluding carers with limited leave to remain on another ground would be in conflict with EU case law.
Regarding the second ground, the Court of Appeal agreed with the lower court that Regulation 16 explicitly excluded those with indefinite leave to remain, but it cannot be interpreted to prevent those with limited leave to remain from having a Zambrano right of residency.
Outcome in Akinsanya:
As a result of rejecting the second ground, the Court of Appeal dismissed the Secretary of State’s appeal against Mostyn J’s decision, irrespective of its conclusion on the first ground.
Considering the Court of Appeal’s reasoning, particularly that there was an error of law relating to the Secretary of State’s interpretation of Regulation 16, not EU jurisprudence, the review of the definition of a person with a Zambrano right to live by the Secretary of State began.
Case update 2022 UK:
Following the Court of Appeals judgment in the case of Akinsanya, new Zambrano EU Settlement Scheme guidance was issued by the Home Office on 13th June 2022. The Secretary of State reviewed the EU Settlement Scheme rules for Zambrano primary carers and decided to keep the rules as they are, indicating that an individual will only be able to live in the UK as a Zambrano primary carer if they do not have leave to enter or leave to remain in the UK through another immigration route. Individuals who have previously held leave via another method must consider applying under a different immigration channel, such as the family visa.
The Home Office state as follows:
“The Home Secretary has carefully considered the Court of Appeal judgment and… intends to maintain the requirement in sub-paragraph (b) of the definition [of Zambrano carer in Appendix EU] that the applicant did not, by the end of the transition period and during the relevant period relied upon, have leave to enter or remain in the UK (unless this was under the EUSS).
This means applications will be considered under the existing Immigration Rules for the EUSS in Appendix EU. Applicants will be eligible for EUSS status in this category where, by the end of the transition period and during the relevant period relied upon, they met the relevant requirements of regulation 16 of the 2016 Regulations and did not have leave to enter or remain in the UK (unless this was under the EUSS).”
By Jenny