Court Clarifies Zambrano Rights and EU Settlement Scheme in Immigration Case

Citation: [2024] EWHC 469 (Admin)
Judgment on

Introduction

In the case of Olorunfunmilayo Oluwaseun Akinsanya v Secretary of State for the Home Department, the English High Court of Justice conducted an in-depth analysis of the interaction between domestic immigration law and European Union (EU) law. The case specifically revolved around the proper interpretation of “Zambrano rights” and their applicability under the UK’s EU Settlement Scheme (EUSS) established in Appendix EU to the Immigration Rules post-Brexit. The judgment delves into the distinctions between different classes of carers under EU law, the definition of persons eligible under Appendix EU, and the application of public law principles including rationality, non-discrimination, and statutory duties.

Key Facts

The claimants in this case were individuals who had previously secured leave to remain in the UK under Appendix FM (App FM) of the Immigration Rules. They both applied for indefinite leave to remain under Appendix EU (App EU) of the Immigration Rules as Zambrano carers, asserting that they previously possessed this right under EU law before the UK’s withdrawal from the EU. Their applications were refused on the basis that, at the time the UK left the EU, they already possessed leave to remain under a different provision (App FM), thus disqualifying them from Zambrano rights according to the defendant’s interpretation of the law.

The case engaged several legal principles, including:

  1. EU Law and Zambrano Rights: Zambrano rights derive from CJEU jurisprudence, which provides a derivative right of residence for a non-EU national who is the primary carer of an EU citizen, ensuring the EU citizen can genuinely enjoy their rights. The key principle is that Zambrano rights were understood to apply only when carers had no other form of leave to remain under domestic law.

  2. Rationality and Public Law Duties: The court assessed whether the defendant’s decisions and the guidance used were rational and complied with the public sector equality duty under section 149 of the Equality Act 2010, and the duty under section 55 of the Borders, Citizenship and Immigration Act 2009 to safeguard and promote the welfare of children.

  3. Legitimate Expectation and Retrospectivity: The Second Claimant argued that the change in interpretation of Zambrano rights under App EU departed from a legitimate expectation and had retroactive implications, contravening previous rights or expectations.

Outcomes

The court concluded that:

  1. Misunderstanding of the Law: The defendant’s formulation of Appendix EU and the subsequent guidance, to the extent they were based on the view that a realistic prospect of obtaining leave excluded the Zambrano right, were founded on a misunderstanding of the scope of the Zambrano right.

  2. Impact on Claimants: The misunderstanding, however, did not affect the claimants since they had leave under App FM at the time the Withdrawal Agreement took effect. The court determined it to be “highly likely” that the proper understanding of the Zambrano jurisprudence would not have altered the outcome for the claimants.

  3. Rationality and Discrimination: The court maintained that the differentiation between individuals holding leave under App FM and those potentially holding Zambrano rights was rational and not discriminatory. The claimants were not disadvantaged under App FM compared to App EU, given that these routes serve different purposes and have unique benefits and disadvantages.

  4. Public Sector Equality Duty: The court found that the defendant did adequately engage with the relevant considerations under the duty, ruling that there was due regard to the equality impact assessment and accompanying materials.

  5. Section 55 Duty: The defendant complied with the duty and safeguarded the welfare of children, as the claimants’ family life and the children’s welfare were protected by the grant of leave under App FM.

  6. Legitimate Expectation and Retrospectivity: The court rejected the claimant’s argument concerning legitimate expectations and retrospectivity, noting that the claimants did not have EU law Zambrano rights to begin with, and the promises made by the government did not extend to individuals in the claimants’ circumstances.

Conclusion

The judgment in Olorunfunmilayo Oluwaseun Akinsanya v Secretary of State for the Home Department affirms the cogency of the UK’s legislative scheme in delineating individuals’ rights post-Brexit. While addressing the intersection of EU law-derived rights and domestic immigration law, the court underscored the importance of correct legal interpretation and the application of rational and non-discriminatory principles in administrative decisions. Notably, the court clarified that the EUSS under Appendix EU is accurately structured to only continue rights previously recognized under EU law and that the provisions under Appendix FM, although distinct, provided concurrent protection of individuals’ rights – particularly those relating to family life under Article 8

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