Zambrano Rights and Limited Leave to Remain: Akinsanya v Secretary of State for the Home Department  EWCA Civ 37
The Court of Appeal has delivered its judgment in Akinsanya v Secretary of State for the Home Department  EWCA Civ 37, the Secretary of State’s appeal against Mostyn J’s judgment of last year.
In that judgment, Mostyn J held that the Secretary of State had erred in law when formulating the definition of a “person with a Zambrano right to reside” in Appendix EU to the Immigration Rules as precluding a person with leave to enter or remain in the UK, unless that was granted under Appendix EU. The Secretary of State had accepted that her intention in framing the Annex 1 definition was that it should accurately state the right to reside enjoyed by Zambrano carers in the UK.
Mostyn J held that the Secretary of State erred in both her understanding of the Zambrano jurisprudence and of regulation 16 of the Immigration (European Economic Area) Regulations 2016, which implemented the Zambrano right in domestic legislation. He held that having limited leave to remain in the UK does not extinguish or preclude a Zambrano right of residence under either EU jurisprudence or regulation 16. The Secretary of State undertook to reconsider the definition in Annex 1 of Appendix EU, subject to appealing against that judgment to the Court of Appeal.
The Secretary of State appealed against Mostyn J’s decision on 2 grounds:
- That Mostyn J erred in his conclusion that a Zambrano right under EU law was not extinguished by the existence of a concurrent limited leave to remain; and
- that he erred in his conclusion that regulation 16 could not be construed so as to exclude persons with limited leave to remain from having a Zambrano right of residence.
The Secretary of State accepted that even if the Court of Appeal only rejected ground 2, her appeal should be dismissed, but argued that the consideration of ground 1 (the effect of the Zambrano jurisprudence) was relevant to ground 2 (the construction of regulation 16) and therefore should also be considered. The Court agreed.
The Zambrano Jurisprudence
Upon hearing arguments from both parties, Underhill LJ, with whom Bean LJ and Andrews LJ agreed, concluded 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). He considered the CJEU’s rulings in Iida v Stadt Ulm C-40/11,  Fam 121 and NA v Secretary of State for the Home Department C-115/15,  QB 109, which were relied on by the Secretary of State, as determinative of the matter. He did not consider that that approach was inconsistent with the judgment in Sanneh v Secretary of State for Work and Pensions  EWCA Civ 49,  QB 455, which was relied on on behalf of Mrs Akinsanya.
As such, the Court found that, whether the Secretary of State erred in formulating the Annex 1 definition of a person with a Zambrano right to reside is dependent upon what she intended to achieve: if she intended to grant leave under Appendix EU to individuals who directly relied on Zambrano rights (at the date of application or during a previous period of qualifying residence), then her approach was consistent with EU jurisprudence, 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 her approach in framing the definition in Annex 1 to exclude carers who have limited leave to remain on another basis was inconsistent with EU caselaw. Underhill LJ considered that the Secretary of State’s intention was not a matter for the Court to decide and that the Court’s conclusion on ground 2 rendered that question redundant in any event.
The Construction Of Regulation 16 (as it was in force prior to its repeal)
The Secretary of State accepted that domestic legislation implementing EU law could lawfully go beyond what was required by the provisions of the EU law it sought to implement. She also accepted that there was no patent drafting error in drafting regulation 16. Nonetheless, it was argued on her behalf that regulation 16 should be construed, despite its natural reading, in such a way as to correspond with the EU jurisprudence on Zambrano rights. It was further argued that there was a presumption against going beyond the minimum necessary to comply with an EU law obligation.
Underhill LJ rejected that there was such a presumption and, in any event, held that the legislator’s intent is no more than a consideration forming part of the overall statutory construction exercise. In this case, Underhill LJ found it was possible for the Secretary of State to not have intended to go beyond what was required by the Zambrano jurisprudence, but to have misunderstood its scope or to have adapted it more broadly into the domestic scheme for practical reasons.
In any event, Underhill LJ found that the construction of regulation 16 was clear: it explicitly precluded persons with indefinite leave to remain from being recognised as having a Zambrano right of residence. Seeking to have it construed as covering persons with limited leave to remain would completely change its scope and meaning. He, thus, rejected the Secretary of State’s second ground of appeal.
Outcome in Akinsanya
Consequently, having rejected ground 2, the Court of Appeal dismissed the Secretary of State’s appeal against Mostyn J’s judgment, despite its conclusion on ground 1. Mostyn J’s quashing order stands, but the terms of his declaration were modified by agreement between the parties to reflect the Court of Appeal’s reasoning; namely, the fact that there was only a finding of error of law in relation to the Secretary of State’s understanding of regulation 16 and not of the EU jurisprudence.
The Court commented that the reconsideration of the definition of person with a Zambrano right to reside in Annex 1 of Appendix EU by the Secretary of State, which had not been undertaken pending the appeal, will proceed. However, the Court disclaimed that its judgment does not express any view on how the Secretary of State can or should amend the definition.
As such, the content of the reconsidered definition is uncertain: should the Secretary of State wish to limit it to what she and the Court of Appeal consider is the position on Zambrano rights under EU law, the new definition is unlikely to be substantively different. It could effectively continue to exclude Zambrano carers with limited leave. Importantly, as the Court of Appeal comments in paragraph 57 of the Akinsanya judgment, such reconsidered definition could in principle be lawful, by being consistent with the EU jurisprudence as interpreted by the Court.
It is therefore important to consider the Secretary of State’s reconsideration, once that is undertaken, and be advised accordingly.
Commentary on the Akinsanya Judgment
As set out above, the Court of Appeal considered the rulings in Iida and NA as determinative of the proposition that Zambrano rights do not arise when the Zambrano carer has a right to reside under domestic law.
However, in Iida the CJEU considered multiple factors: 1) the applicant was seeking a right of residence in Germany, whereas his spouse and daughter, who were German citizens, were residing in Austria; 2) the applicant had always resided in Germany in accordance with domestic law and the absence of an EU right of residence did not discourage his spouse and daughter from moving to Austria; 3) the applicant had a renewable, extant right of residence in Germany under German law. In view of the circumstances, the CJEU considered that it had not been shown that the applicant’s spouse and daughter’s right of free movement would be obstructed if the applicant did not have a Zambrano right to reside in Germany; the hypothetical prospect of the right being obstructed did not suffice.
The Secretary of State and the Court of appeal considered that only 3) related to the existence of a limited right to reside under domestic law and “that the [CJEU] did not regard the Zambrano jurisprudence as being engaged in circumstances where the carer already enjoyed residence rights and where accordingly there was no current risk of them, or therefore their EU citizen dependants, having to leave the EU. Even if the domestic right in question might in principle lapse or be removed, leading to the potential “obstruction” of the dependants’ article 21 rights, that did not engage Zambrano so long as that possibility was ‘purely hypothetical’”.
It begs the question, however, why the CJEU would have considered factors 1) and 2) as relevant, if factor 3) was sufficient to preclude the application of EU law. In my view, this cannot support the proposition that, in all circumstances, the existence of a right of residence under domestic law precludes Zambrano rights from arising. In fact, there could be circumstances, as set out below, where the “obstruction” is not hypothetical and can exist during the period of validity of the domestic right of residence, rather than following its lapsing or its removal.
Article 20 of the FEU Treaty precludes national measures which have the effect of depriving citizens of the European Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the European Union. The test is whether the EU citizen dependant would in practice be compelled to leave the EU, due to a national measure affecting their third-country national carer. Such national measure need not necessarily be removal action: in Ruiz Zambrano the measure was considered to not only be a refusal to grant a right of residence, but also a refusal to grant a work permit. The latter would risk not having sufficient resources to provide for the carer and their family and would result in the children, citizens of the EU, being compelled to leave the EU.
As such, the CJEU jurisprudence does not in principle confirm that a person, whose carer cannot be removed under national law, cannot be compelled to leave the EU on account of another national measure. In practice, having limited leave to remain in the UK would often be a strong factor as to why there would not be such a compulsion. However, one can envisage situations where such compulsion would arise despite there being extant limited leave: e.g. in the event of a refusal of lifting the condition of no recourse to public funds, with the result that funds that would have been available to a person with Zambrano rights, would not be available to a person with limited leave and to their family, which in turn would compel them to leave the EU. Another possible situation would be where a person on a Student visa is prohibited from working full-time during term time as a condition of their leave, where that is necessary to support their family, including a child that is British or an EU citizen, and would result in their being compelled to leave the EU.
The case of NA is not inconsistent with that view: a right of residence under national law could mean a right conferred by national law that implements EU law. Further, the term “right of residence” is qualitatively different to leave granted under domestic law. The power to grant leave is conferred by the Immigration Act 1971 to the Secretary of State. Whilst how that power will be exercised is governed by the Immigration Rules, which are laid before Parliament by the Secretary of State, those are not legislation.The lawfulness of the exercise of this power is judicially reviewable, but the Rules do not confer rights or obligations. There is only a duty to exercise the power where a failure to do so is incompatible with Convention rights, by virtue of section 6 of the Human Rights Act 1998 (Hesham Ali v Secretary of State for the Home Department  UKSC 60 paras 17 and 18). In any event, the ruling in NA explicitly states that Article 20 TFEU must be interpreted as meaning that it does not confer a right of residence only where the applicants qualify for a right of residence under a provision of secondary EU law. There is nothing in the ruling precluding such a right being conferred where the applicants qualify for a right of residence under national law that does not arise from EU law.
In my view, the proposition that Zambrano rights cannot in principle arise or be maintained during the time a person has limited leave to remain in an EU state cannot be derived from either Iida or NA. It is arguably correct that, whilst a Zambrano carer has limited leave to remain, it would be unlikely that their EU citizen dependants would be compelled to leave the UK with them due to a national measure. However, that does not render such compulsion impossible in principle, as set out above. It is therefore difficult to reconcile a definition precluding all persons with limited leave from having or having had a Zambrano right to reside with EU law jurisprudence, which treats the existence of a right to reside under national law as a factor to consider in establishing whether article 20 TFEU would apply to create a Zambrano right, rather than as a negative condition (as is the case with other rights of residence under secondary EU law). The existence or absence of limited leave to remain on another basis is simply part of the assessment of the requirement of compulsion.
Should the reconsidered definition in Annex 1 of Appendix EU continue to preclude people with limited leave to remain, a fresh challenge could be brought on that basis (provided the Secretary of State continues to intend consistency with EU law), although it would be for the Supreme Court to consider the matter conclusively in view of the Court of Appeal’s judgment being binding on lower courts.
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