Zambrano Rights And Limited Leave To Remain: Akinsanya V Secretary Of State For The Home Department [2022] EWCA Civ 37

• Published date: 03 February 2022
• Subject Matter: Litigation, Mediation & Arbitration, Immigration, Trials & Appeals & Compensation, General Immigration, Work Visas
• Law Firm: Richmond Chambers Immigration Barristers
• Author: Mr Alex Papasotiriou

The Court of Appeal has delivered its judgment in Akinsanya v Secretary of State for the Home Department [2022] 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:

1. 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
2. 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, [2013] Fam 121and NA v Secretary of State for the Home Department C-115/15, [2017] 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[2015] EWCA Civ 49, [2016] 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...