The latest instalment of the Akinsanya litigation, which looks at the entitlement of Zambrano carers to leave under Appendix EU has been decided by the High Court in Akinsanya & Anor, R (On the Application Of) v Secretary of State for the Home Department [2024] EWHC 469 (Admin). Both appellants are single mothers of British citizen children.

The court gave a succinct explanation of what is meant by a Zambrano right at paragraph 3:

In bald summary that was a right given under EU law to a person who was the carer of an EU citizen where the latter was also a citizen of the country where he or she was residing in circumstances where the absence of that right or the removal of the carer would mean that the EU citizen would have to leave the country in question.

Background

Before Brexit, the position was that Zambrano leave, although a free application, did not allow recourse to public funds, and did not lead to settlement. Therefore, many eligible carers (most often single mothers of British Citizen children) would apply for leave as a parent under Appendix FM instead. In this route it is possible to get a fee waiver (eventually), and to access public funds (via a separate application) and it was a path to settlement for those who can afford the extortionate fee (for which there is no fee waiver available). Settlement is available only after ten years for those who could not meet certain requirements such as the financial or immigration status requirement.

However, with the introduction of Appendix EU, there appeared to be an available route with a shorter (or immediate where the residence requirement was met) route to settlement, a free application, and recourse to public funds is permitted in some circumstances. The excitement at the inclusion of Zambrano carers in Appendix EU was very short lived though, as people who could be granted leave under other provisions of the immigration rules were excluded from a grant of leave under this provision of Appendix EU.

Following a legal challenge to that exclusion in the first Akinsanya case, the Home Secretary was required to reconsider the rules as they related to Zambrano carers. After that reconsideration, the Home Secretary decided to maintain the exclusion for those who had already been granted leave under other rules but those who did not already have leave in another category were able to apply. The deadline for applications under Appendix EU was 30 June 2021, but was reopened for a six week period to allow eligible people to apply.

Following the Court of Appeal’s decision in Velaj v Secretary of State for the Home Department [2022] EWCA Civ 767 the guidance was changed on 14 December 2022 to again include consideration of whether the carer would have been likely to be granted leave under Appendix FM if an application was made.

The judicial review

The claimants argued that the Home Secretary’s approach to the exclusion was based on a misunderstanding of the Zambrano right and that the Home Secretary’s whole approach to the Zambrano carer definition in Appendix EU was therefore also unlawful.

In particular, it is said that the misunderstanding meant that the Defendant did not appreciate that there was a difference between those who had leave to remain under a different provision (as a result of having applied for such leave and having paid any appropriate fees) and those who had chosen not to seek leave to remain. The Defendant did not appreciate that a simple carrying over of the Zambrano jurisprudence would continue a distinction between those categories. The court cannot be confident, the Claimants say, that if the Defendant had properly understood the position she would not have removed that distinction and brought those who would otherwise be Zambrano carers but who had leave under App FM into the category of those who could seek App EU leave.

They argued that the Home Secretary should reconsider the definition in Appendix EU.

The claimants also argued that the Home Secretary had failed to comply with duties under section 149 of the Equality Act 2010 and section 55 of the Borders, Citizenship and Immigration Act 2009. Other grounds were that exclusion of people with a real prospect of getting leave under a different route was irrational and/or unlawfully discriminatory.

The High Court said that “the authorities make it clear that regard is to be had to the rights actually enjoyed by the carer in question and that the Zambrano right is only excluded where the carer has been granted leave to remain” [paragraph 109]. On that basis, the court said that the guidance’s exclusion of those with a realistic prospect of obtaining leave was based on a misunderstanding of the law [paragraph 110].

A declaration that the Zambrano definition in Appendix EU is unlawful could also have positively impacted others excluded from the definition, like the claimants. However, although the judge accepted that people who do not have leave to remain should not be excluded and the guidance was wrong to do so, he decided that that misunderstanding of law would not have impacted the treatment of the claimants who had another form of leave to remain.

The other grounds of challenge were dismissed by the court.

As the exclusion of those with a potential ability to be granted leave under another route had been re-introduced into the guidance but not the immigration rules, the guidance will presumably need to be changed again as a result of this decision. The practical effect of any of this is unclear at this stage.

Conclusion

It is very important to bear in mind the largest group affected here. These are single mothers of British Citizen children, and the Home Office has gone to extraordinary lengths to make their lives more difficult. These mothers are entitled to stay in the UK and there is no question of them being made to leave, the Home Office’s insistence on excluding them from the more favourable grant of leave in Appendix EU is solely about making their lives as unpleasant and difficult as possible.