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Akinsanya judgment: High Court ruling on Zambrano carers may extend eligibility, despite expired EU Settlement Scheme deadline

The deadline for most applications under the EU Settlement Scheme, 30 June 2021, has now been and gone. However, on 9 June 2021, the High Court handed down its judgment in the case of R (Akinsanya) v Secretary of State for the Home Department [2021] EWHC 1535 (Admin). As a result of this decision, it is possible that the Home Office might continue to accept applications from Zambrano carers in future, for a specified limited period. 

Facts of the Akinsanya case 

Ms Akinsanya had been issued with a derivative residence card as a Zambrano carer, on the basis that she was a third country national and the primary carer of her British child. However, when she later became unable to work due to ill health, she found herself in need of public funds. As a Zambrano carer, she was not eligible for such support. She was directed by the Secretary of State for the Home Department (SSHD) to make a subsequent application for leave to remain in the UK under Appendix FM. She duly did so, and was granted 30 months’ limited leave to remain in the UK. 

Ms Akinsanya later applied through the EU Settlement Scheme for indefinite leave to remain, as she was a Zambrano carer with five years’ continuous residence in the UK. However, the SSHD decided that she did not meet the definition of a Zambrano carer, because she had already been granted limited leave to remain. Therefore, her British child would not be compelled to leave the UK if Ms Ankinsanya did not have a Zambrano right of residence. 

Ms Akinsanya challenged the decision by way of judicial review. 

The High Court’s judgment 

The Court found that the definition of Zambrano carers in Appendix EU, the part of the Immigration Rules that governs the EU Settlement Scheme, was wrong. Further, it found that two Home Office guidance documents, published in 2019 and 2021, were also wrong. The error in each was the same: excluding those who have limited leave to remain in the UK from meeting the definition of a Zambrano carer. 

Mostyn J considered the CJEU’s original Zambrano judgment of 2011, and found that in that case, Mr and Mrs Zambrano would not have been compelled to leave if they were not granted the right to reside, as they had both a limited, renewable resident permit, and a non-refoulement order preventing them from being removed. Mostyn J also observed that the residence rights of a Zambrano carer are different to and exceed the rights of a person with limited leave to remain. Therefore, having limited leave to remain does not preclude an individual from meeting the definition of a Zambrano carer. 

The subsequent consent order 

The SSHD was refused permission to appeal. However, the SSHD has now applied to the Court of Appeal for permission to challenge the High Court’s decision. 

In the meantime, a consent order has been made stating that the SSHD will:

  • firstly, make a Zambrano reconsideration of Appendix EU to the Immigration Rules, and;
  • secondly, continue to accept Zambrano carer EUSS applications made on or after 1 July 2021 for a specified period. This specified period will start from  the publication of the outcome of the Zambrano reconsideration of Appendix EU, and will run for at least 6 weeks. 

It is unclear when the SSHD will complete and publish their reconsideration of Appendix EU. However, it is unlikely to be before the Court of Appeal’s decision. 

I already applied to the EU Settlement Scheme as a Zambrano carer. What does this mean for my application? 

The Home Office has suspended decisions on Zambrano EU Settlement Scheme applications that will be affected by the Akinsanya judgment, and no decisions will be made until the reconsideration of Appendix EU is complete. Therefore, no refusals will be issued before that time. 

The consent order also states that those who applied before 30 June 2021 will be issued with a certificate of application confirming their entitlement to work, study and rent a place to live in the UK until the final determination of their Zambrano application.

I have a pending application for limited leave to remain. Will I be able to make an EU Settlement Scheme application as a Zambrano carer? 

The consent order states that Zambrano carers can have both EU Settlement Scheme and Appendix FM applications running concurrently, as long as those applications are based on the same circumstances. 

I have  limited leave to remain. Will I be able to make an EU Settlement Scheme application as a Zambrano carer? 

If you have limited leave to remain which expires after 30 June 2021, you have the right to make a late application under Appendix EU at any time before your limited leave expires. This also applies if you have a pending application to extend your limited leave, which has not been finally determined. 

I have no leave to remain. Will I be able to make an EU Settlement Scheme application as a Zambrano carer? 

If you did not make an application before 30 June 2021, but you may be eligible for leave as a potential Zambrano applicant under Appendix EU in light of the Akinsanya judgment, and you are then encountered by Immigration Enforcement, under the consent order you should be directed to apply. You will be provided with written notice giving you an opportunity to make a valid application under Appendix EU, normally within 28 days of the date of the written notice. 

Contact our EU Settlement Scheme Barristers

For expert advice and assistance with an application under the EU Settlement Scheme, contact our immigration barristers in London on 0203 617 9173 or complete our enquiry form below.

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