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Akinsanya judgment in Court of Appeal: Home Secretary must re-think EUSS rules for Zambrano carers

Written by
Hackney Community Law Centre, Simon Cox and Michael Spencer
Date of Publication:
25 January 2022

The Court of Appeal has dismissed the Home Secretary's appeal in Akinsanya, finding that she misinterpreted UK law when setting the Immigration Rules for Zambrano carers under the EU Settlement Scheme ('EUSS'). The result is that she will now need to reconsider, and potentially redraft, the EUSS Rules as they relate to Zambrano carers. This could have a positive impact on thousands of parents of British citizen children in the UK.

A 'Zambrano carer' is a non-EEA national parent or carer of a dependent British citizen child, where the British citizen would be unable to reside in the UK if the carer had to leave. Following the European Court of Justice's decision in Ruiz Zambrano v Office National de l'Emploi (C-34/09) [2012] QB 265, Zambrano carers have been recognised to have a right to reside under EU law. The Zambrano judgment was given effect in UK law through amendments to the Immigration (European Economic Area) Regulations in 2012 and 2016.

Following Brexit, the Home Secretary had intended to extend EUSS leave to all Zambrano carers. However, the EUSS Rules were drafted so as to exclude anyone who already had leave to remain on another basis (for example on private and family life grounds under Article 8 of the European Convention on Human Rights). This excluded a significant number of third country national parents of British citizen children, including Ms Akinsanya, who would otherwise have been eligible for settled status under the EUSS. Settled status is far preferable to limited leave to remain, because it does not have a 'no recourse to public funds' condition and does not require expensive renewal applications.

The Court of Appeal found that, in setting the EUSS Rules, the Home Secretary had misinterpreted the Zambrano provisions under UK law, which did not expressly or impliedly exclude those with existing leave to remain from Zambrano rights. However, the Court found that the Home Secretary had correctly interpreted the scope of the Zambrano right under EU law, which only arises where the carer has no domestic (or other EU) right to reside.

The Home Secretary has previously confirmed to the Court that she would re-consider the EUSS rules in light of the Court's judgment. She has not sought permission to appeal to the Supreme Court. Ms Akinsanya has applied for permission to appeal solely on the question of EU law.

Hackney Law Centre (who represent Ms Akinsanya) is seeking information as to the timescale for the Home Secretary's reconsideration process and will circulate an update as soon as available. In the meantime, potential Zambrano carers who have not already applied for pre-settled or settled status under the EUSS should seek urgent legal advice.

What does this mean for my application/my client's application?

At the moment, we are unable to say how the judgement will affect individual applications. The Secretary of State must now reconsider the policy and rules but there are a variety of options available to her, provided that the new policy/rules are lawful.

For further background on the High Court's judgment see here and here.