The Court of Appeal has dismissed the government’s appeal against last year’s decision that the EU Settlement Scheme rules on Zambrano carers are unlawful. But the judgment in Akinsanya v Secretary of State for the Home Department [2022] EWCA Civ 37 leaves the situation for these carers — non-EU parents of British citizen children — uncertain.

The court held the Home Secretary had misunderstood domestic law but did not rule that there had been any breach of EU law. While the Home Secretary is now required to rewrite the Immigration Rules with regard to Zambrano carers, it remains to be seen whether she will do so in a way that will provide a route to settlement under the Scheme for those with existing permission to stay in the UK.

The prize: faster settlement for Zambrano carers

Ms Akinsanya is from Nigeria and the parent of a British citizen child. She contended that she met the requirements for settled status under Appendix EU as a Zambrano carer, despite already having limited leave to remain in the UK under Appendix FM. As Hackney Community Law Centre puts it, “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”.

At Praxis, we represent many clients in Ms Akinsanya’s position: parents of British citizen children with limited leave to remain on a ten-year pathway to settlement. Most have lived in the UK for a long time; they and their children are clearly “settled” in every sense of the word except for their immigration status. Every 30 months they are required to either find £2,593 to extend their leave or to produce extensive financial evidence to prove their inability to pay. They also have to apply again to the Home Office to confirm that they remain the parent of a British citizen child and therefore would like to continue to have permission to stay in the UK.

Upon reaching the milestone of ten years’ leave to remain, they are required to pay a further £2,389 to apply for settlement, and to pass English language and life in the UK tests. Even without fees for solicitors and biometric appointments, the total cost of obtaining indefinite leave to remain is £12,761 over the ten years.

By contrast, an application for status under the EU Settlement Scheme is free. The pathway to settlement is five years, with no English or life in the UK tests at the end. It is therefore a much simpler, potentially shorter and less costly route to settlement.

Pulling 10,000 families out of the ten-year trap

We see the human cost of the ten-year pathway every day. Life on this route is precarious, especially for families on low incomes. The constant threat of loss of public funds each time an application is made, and the need to fork out thousands of pounds in fees every couple of years, means that it only takes one thing going wrong – illness, accident, the loss of a job – for a family to be pushed into destitution or homelessness.

The Home Office’s attempt to exclude this group from the much more generous remit of the Settlement Scheme highlights yet again the punitive nature of the immigration system. Officials appear determined to make an example of those who find themselves unable to meet the complex and expensive requirements of the Immigration Rules and make it onto a five-year settlement pathway.

It is not possible to state for certain the exact number of families who would benefit if the Home Secretary were to rewrite the rules to enable those with existing leave to apply under the Settlement Scheme. Prior to the main application deadline on 30 June last year, working in partnership with law firms providing pro bono support, we submitted 104 such applications. We are currently working on another 35.

Not everyone with leave as the parent of a British citizen child would be best advised to apply to the Settlement Scheme anyway. Those only eligible at this stage for pre-settled status might lose the right to claim welfare benefits and homelessness assistance. But our best estimate suggests that around 10,000 families might benefit if the rules are rewritten so that they are able to apply.

New Settlement Scheme rules may or may not help

It is unclear at this stage whether all the legal issues in Akinsanya have been fully addressed. The High Court, having made a decision that the Home Secretary acted unlawfully, did not consider it necessary to deal with all the arguments made. This means that there might still be scope for further litigation if the revised rules continue to exclude those with existing leave.

For now, potential Zambrano applicants to the Settlement Scheme face a further period of watching, waiting and hoping that the Home Secretary chooses to act pragmatically and change the rules in a spirit of good sense and generosity.