Akinsanya Judgment: High Court Ruling On Zambrano Carers May Extend Eligibility, Despite Expired EU Settlement Scheme Deadline

• Published date: 12 August 2021
• Subject Matter: Litigation, Mediation & Arbitration, Immigration, Trials & Appeals & Compensation, General Immigration
• Law Firm: Richmond Chambers Immigration Barristers
• Author: Ms Olivia Waddell

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...