On 9 June 2021, with just 21 days left for Zambrano type applicants to apply under the EU Settled Status Scheme (EUSS), the High Court delivered its judgment in the case of R (Akinsanya) v Secretary of State for the Home Department  EHWC 1535. The decision held the policy of the Home Office to deny Zambrano carers the right to apply through the EUSS if they held another form of leave within the immigration rules as unlawful.
The Home Office prevented Zambrano carers the right to apply through the EUSS through instructions to caseworkers – thereby denying them the possibility of making an unpaid application, obtaining settled status and the right to claim benefits. The only avenue left to some was to apply to remain in the UK through a paid application as the parent of a child through Annexe FM for limited leave to remain.
Justice Mostyn delivering judgement cited the Zambrano case, as it provided the legal basis for Zambrano carers to reside in an EU state:
“I do not think this is correct. As I have explained above, the family could not be deported because of the non-refoulement order and Mr Zambrano holding a limited, renewable residence permit and being entitled to a limited work permit.
So there was no question of Mr and Mrs Zambrano being compelled to leave if they were not granted this novel right. On the contrary, the non-refoulement order, bolstered by the residence and work permits granted to Mr Zambrano, meant that the family was lawfully present in Belgium and could not be compelled to leave.”
Justice Mostyn noted the court in Zambrano had talked about both a long-term grant of residence and right to work and, had not sought to water this down through for example, a temporary visa or permission. He concluded EU cases in this area did not consider a grant of leave under domestic law would ‘extinguish’ Zambrano type carer’s rights and at paragraph 40 stated:
“This very clear analysis shows that:
i) a Zambrano right is a substantive right, and not merely a procedural defence to deportation;
ii) a Zambrano right confers "at all times" a right to stay, which I take to mean, at a minimum, a right to stay while the children are in their minority; and
iii) where under domestic law an entitlement to social benefits depends on lawful or habitual residence, then a Zambrano carer will qualify for them.”
He found that these principles ‘afforded to Zambrano carers far exceeded the entitlements granted to someone with limited leave to remain.’
Justice Mostyn referred to the Secretary of State’s amendment to the 2016 EEA Regulations and noted, no attempt was made to exclude those with limited leave to remain from applying when the Secretary of State could have done so and decided it was not his position to rewrite immigration laws by importing words into legislation.
This now leaves Zambrano carers affected by the judgement little time to prepare complicated cases through the EUSS.
If you are a Zambrano carer or have a complex immigration issue, please contact us by clicking here, by sending an email to firstname.lastname@example.org or telephoning us on 44 207 038 3980 and of our immigration lawyers will respond to you.