The Secretary of State for the Home Department v Sylvia Sonkor
[2023] UKUT 276 (IAC)
Olorunfunmilayo Oluwaseun Akinsanya & Anor, R (on the application of) v Secretary of State for the Home Department
11 March 2024
[2024] EWHC 469 (Admin)
High Court
Two people were denied immigration status because they already had a different type of immigration status. They argued that the rules were unfair, but the court said the rules were applied correctly and there was no discrimination.
Key Facts
- •Two claimants challenged decisions refusing them indefinite or limited leave to remain under Appendix EU (App EU) of the Immigration Rules.
- •Both claimants had leave to remain under Appendix FM (App FM) at the relevant times.
- •The case concerned the interpretation of Zambrano carers' right to reside in the UK after Brexit.
- •The Home Office's guidance on App EU was challenged as based on a misunderstanding of Zambrano rights.
- •The claimants argued that the Home Office's interpretation discriminated against them and failed to comply with equality and welfare duties.
Legal Principles
Zambrano right to reside: Does it extend to those with a real prospect of obtaining leave under a different route, even if they haven't obtained it?
EU law, specifically the jurisprudence of the CJEU in Ruiz Zambrano, and subsequent UK case law.
Public Sector Equality Duty (PSED): The Home Secretary must have due regard to the need to eliminate discrimination and advance equality of opportunity.
Section 149 of the Equality Act 2010
Duty to safeguard and promote the welfare of children.
Section 55 of the Borders, Citizenship and Immigration Act 2009
Legitimate expectation: Can changes in immigration rules retrospectively remove accrued rights or defeat legitimate expectations?
Common law principles of legitimate expectation.
Outcomes
Claims dismissed.
The court found that the Home Office's understanding of Zambrano rights, while potentially flawed in its application of guidance, did not affect the claimants' cases. The claimants did not have Zambrano rights under EU law due to their existing leave under App FM. The court also found that the Home Office complied with its equality and welfare duties and that no legitimate expectation was breached.
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