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Zambrano EUSS Primary Carers “New” Guidance: Akinsanya and Velaj

Written by
Alice Muzira, UK Immigration Justice Watch
Date of Publication:
04 July 2022

"The Home Secretary has carefully considered the Court of Appeal judgment and has decided that she no longer wishes that definition in Appendix EU to reflect the scope of the 2016 Regulations (which have now been revoked) but wishes it to reflect the scope of those who, by the end of the transition period, had an EU law right to reside in the UK as a Zambrano primary carer, in line with the originally stated policy intention. She therefore intends to maintain the requirement in sub-paragraph (b) of the definition that the applicant did not, by the end of the transition period and during the relevant period relied upon, have leave to enter or remain in the UK (unless this was under the EUSS).

This means applications will be considered under the existing Immigration Rules for the EUSS in Appendix EU. Applicants will be eligible for EUSS status in this category where, by the end of the transition period and during the relevant period relied upon, they met the relevant requirements of regulation 16 of the 2016 Regulations and did not have leave to enter or remain in the UK (unless this was under the EUSS).

From today, for a period of six weeks until 25 July 2022, people will be able to apply or re-apply to the EUSS as a 'person with a Zambrano right to reside' and be deemed to have reasonable grounds for having missed the deadline to apply, which was 30 June 2021.

Where a person applies after 25 July 2022, they will need to show there are reasonable grounds why they missed the 30 June 2021 deadline. You can find non-exhaustive examples of such grounds at www.gov.uk/settled-status-eu-citizens-families/eligibility".

Following the Court of Appeal's judgment in the case of R(Akinsanya) v Secretary of State for the Home Department [2022] EWCA Civ 37, [2022] 2 WLR 681, the Home Office have now reconsidered the EU Settlement Scheme (EUSS) requirements for applicants relying on being a Zambrano primary carer and published their Guidance as above on 13 June 2022.

Akinsanya was previously considered in previous blog posts:

Akinsanya litigation: Court of Appeals decides Zambrano Primary Carers of British citizen children with limited leave are covered by the EEA Regulations – UK Immigration Justice Watch Blog

Primary Carers of British citizens: The Akinsanya litigation and persons with a Zambrano right to reside – UK Immigration Justice Watch Blog

Two weeks prior to publication of the "new" Guidance, the judgement of the Court of Appeal in Velaj v Secretary of State for the Home Department [2022] EWCA Civ 767 (31 May 2022) was notified.

The judgement is considered here.

In Velaj, the Court was clear that in Akinsanya, that Appellant's case on Regulation 16 was entirely focused upon Regulation 16(7). Regulation 16(7) defines an "exempt person" for the purposes of Regulation 16(1)(a). The categories of exempt persons include British Citizens, and persons with Indefinite Leave to Remain ("ILR"). Akinsanya contended that persons with limited leave are not exempt persons and by virtue of paragraph 1(b) are entitled to a derivative right to reside, alongside their leave to remain.

Whether Ms Akinsanya could satisfy the criteria in Regulation 16(5) if she had leave to remain under some other provision of domestic law did not directly arise, and it was not something which the Court considered on her appeal.

As per paragraph 65 of Velaj:

"In Akinsanya this court was not required to consider, and did not consider, the requirements of Regulation 16(5) and how 16(5)(c) might be satisfied in practice by a primary carer who had limited leave to remain. The only issue it had to determine was whether Regulation 16(7) acted as a threshold barrier precluding someone like Ms Akinsanya from asserting that she had a derivative right of residence under Regulation 16(5) (or its predecessor) which had survived the subsequent grant to her of limited leave to remain".

The Court in Velaj therefore in essence sought to interpret the phrases contained in Regulation 16(5)(c):

  • "unable to reside in the United Kingdom"
  • "If the person left the United Kingdom for an indefinite period"

The reasoning in Velaj requires consideration that even if Ms Akinsanya was able to convince the Court of Appeal that she was not an exempt person and so entitled to a derivative right to reside alongside her leave to remain, the question would still remain: assumptions aside and holding leave to remain under the Rules, whether in practice, her British citizen child would be unable to remain in the UK, or an EEA Member State or Switzerland, if she was in fact required to leave the UK for an indefinite period.

The Home Office would have been aware of the effect of Velaj when formulating their Guidance.

As matters stand, does the Secretary of State's position as reflected in the Guidance of 13 June 2022 mean:

  • Individuals with leave to remain who applied as a 'person with a Zambrano right to reside' from June 2021 onwards are bound to have their applications refused?
  • There is no point applying as a 'person with a Zambrano right to reside' for those with leave to remain but yet to do so?

In light of the "new" Guidance, a person with leave to remain applying as a "person with a Zambrano right to reside" would face difficulty having regard to the Home Office's main Guidance on Zambrano EUSS Carers:

"Initial eligibility requirements

To be considered eligible for indefinite leave to enter or remain or limited leave to enter or remain under Appendix EU as a 'person with a Zambrano right to reside' (or, as the case may be, in relying on past residence as such a person before moving into – and since remaining in – any, or any combination, of the other categories to which the definition of a 'person who had a derivative or Zambrano right to reside' refers), the applicant both:

must not be and for the relevant period have not been (or, as the case may be, for the relevant period they were not) an 'exempt person' under regulation 16(1)(a) of the EEA Regulations

must not have and for the relevant period must not have had (or, as the case may be, for the relevant period they did not have) leave to enter or remain in the UK granted, unless this was granted under Appendix EU

……………..

Leave to enter or remain in the UK, other than leave granted under Appendix EU

A Zambrano right to reside is only available to a person who has no other lawful basis of stay in the UK as the primary carer of a dependent British citizen, or as a dependant of that primary carer. In the case of Akinsanya v the Secretary of State for the Home Department (SSHD) [2022] EWCA Civ 37 (25 January 2022), the Court of Appeal found that, as a matter of EU law, a Zambrano right to reside does not arise where a person holds leave to remain, but that regulation 16(7) of the EEA Regulations did not exclude holders of limited leave to remain.

…………

To qualify as a 'person with a Zambrano right to reside' under Annex 1 to Appendix EU, the applicant must meet the requirements of that definition by the specified date (normally, 2300 GMT on 31 December 2020) and for the relevant period relied upon. This means in particular that they must not have held leave to enter or remain in the UK under another part of the Immigration Rules, or outside the Rules, at the specified date or for that period.

If the applicant does (or for the relevant period did) have leave to enter or remain in the UK, other than leave granted under Appendix EU, then you must, based on the information available to you, consider their eligibility for leave under the other eligibility requirements in rule EU11 (and, where relevant, EU12) and EU14 of Appendix EU, see: EU Settlement Scheme: EU, other EEA and Swiss citizens and their family members.

If they do not meet any other eligibility requirements for leave under the scheme, then you must refuse the application under rule EU6, without going on to consider the other eligibility stages in this guidance".

Affected individuals whose leave to remain was due to expire prior to receiving decisions on their outstanding Zambrano EUSS application would most likely have timely applied for further leave to remain. Those who are yet to do so, should seriously consider doing so.