Akinsanya v Secretary of State for the Home Department: Defining Zambrano Rights in the EU Settlement Scheme

Introduction

Akinsanya v Secretary of State for the Home Department ([2022] WLR(D) 39) is a pivotal decision by the England and Wales Court of Appeal (Civil Division) that delves into the intricacies of Zambrano rights within the framework of the EU Settlement Scheme (EUSS). The case centers around the Claimant, a Nigerian national and sole carer of a British citizen child, whose application for indefinite leave to remain was initially refused by the Home Department. The crux of the matter lies in the interpretation and application of Zambrano rights post-Brexit, particularly whether existing limited leave to remain affects the entitlement under these rights.

Summary of the Judgment

The Court of Appeal upheld Mostyn J’s decision, which quashed the Home Department's refusal to grant the Claimant ILR under the EUSS. The primary issue revolved around whether the definition of a 'person with a Zambrano right to reside' erroneously excluded individuals who already held limited leave to remain. The Court examined precedents, including the landmark Zambrano case and subsequent rulings like Iida v Stadt Ulm and NA v Secretary of State for the Home Department. Ultimately, the Appeal was dismissed, affirming that the Secretary of State had misunderstood both the Zambrano jurisprudence and the relevant regulations, leading to an unlawful exclusion of the Claimant from Zambrano rights despite her existing limited leave.

Analysis

Precedents Cited

The Judgment extensively referenced pivotal cases that shape the understanding of Zambrano rights:

Ruiz Zambrano v Office National de l'Emploi (C34/09):

This foundational case established that a third-country national parent could derive a right to reside in an EU member state to prevent their EU citizen children from being deprived of their rights under Articles 20 and 21 TFEU.

Baumbast v Secretary of State for the Home Department (C-413/99):

Affirmed the derivative right to reside for third-country national carers facilitating the exercise of their EU citizen children's rights.

Chen v Secretary of State for the Home Department (C-200/02):

Reiterated that derivative rights are essential to ensure EU citizens can freely exercise their rights without undue hindrance.

Iida v Stadt Ulm (C-40/11) and NA v Secretary of State for the Home Department (C-115/15):

Clarified that Zambrano rights do not extend to individuals who already possess a right to reside under national or other EU laws, emphasizing the conditional nature of these derivative rights.

Sanneh v Secretary of State for Work and Pensions ([2016] QB 455):

Highlighted that Zambrano rights arise independently of domestic rights and are contingent upon the presence of EU citizen dependents.

Legal Reasoning

The Court meticulously dissected the legal underpinnings of Zambrano rights as embedded in Articles 20 and 21 of the TFEU. Zambrano rights are designed to prevent Member States from depriving EU citizens of their fundamental rights by ensuring that dependent third-country national carers retain their residence and work rights. The Judgment emphasized that these rights are not automatic but arise only in specific circumstances where their deprivation would infringe upon the EU citizen dependents' rights.

Key points of reasoning included:

Independent Nature of Zambrano Rights: The Rights emanate directly from EU law and are intended to exist irrespective of domestic immigration statuses unless such statuses already fulfill the necessary conditions.
Interpretation of Existing Leave: The Court held that possessing limited leave to remain under domestic law does not nullify Zambrano rights. The initial interpretation by the Secretary of State erroneously conflated domestic leave with Zambrano entitlements.
Impact of Precedents: The precedents underscored that Zambrano rights should not be restricted merely because an individual holds a different form of leave to remain, provided their presence is crucial for the EU citizen dependents' rights.

Impact

This Judgment has significant implications for the application of Zambrano rights within the EUSS, especially post-Brexit:

Clarification of Zambrano Rights: It reaffirms that Zambrano rights are not automatically negated by existing limited leave statuses, thereby broadening the scope of who can claim these rights.
Influence on EUSS Policies: The decision pressures the Home Department to recalibrate definitions and criteria within the EUSS to align with established EU jurisprudence, ensuring that eligible carers are not unjustly excluded.
Future Legal Proceedings: By upholding the importance of Zambrano rights, the Judgment sets a precedent for future cases where third-country national carers seek to maintain their residency based on their EU citizen dependents.
Policy Reconsideration: The Home Department’s commitment to reconsider the relevant provisions indicates a potential shift towards more inclusive policies respecting Zambrano rights.

Complex Concepts Simplified

Zambrano Rights

Named after the Zambrano case, Zambrano rights allow third-country nationals to reside and work in an EU member state if their removal would force their EU citizen children to leave, thereby depriving the children of their rights under the TFEU.

Derivative Rights

Derivative rights refer to the rights that third-country nationals derive from their EU citizen family members. For instance, a parent can obtain the right to reside and work in the EU member state where their child holds EU citizenship.

Appendix EU

Appendix EU to the Immigration Rules governed the EU Settlement Scheme, outlining the criteria and conditions under which EU citizens and their family members could apply for permission to remain in the UK post-Brexit.

Limited Leave to Remain vs. Indefinite Leave to Remain (ILR)

Limited Leave to Remain: A temporary permission allowing an individual to stay in the UK for a specified period, often subject to conditions such as work restrictions.
Indefinite Leave to Remain (ILR): Permanent residency status granting the holder the right to live and work in the UK without time restrictions or conditions.

Conclusion

The Akinsanya v Secretary of State for the Home Department Judgment marks a significant affirmation and clarification of Zambrano rights within the context of the EU Settlement Scheme. By overturning the Home Department's initial refusal, the Court underscored the necessity of aligning domestic immigration policies with established EU jurisprudence to ensure that EU citizen dependents are not deprived of their constitutional rights. This decision not only broadens the understanding of derivative rights for third-country national carers but also compellingly mandates the Home Department to reassess and possibly rectify current definitions and applications within the EUSS framework. Consequently, the Judgment reinforces the principle that immigrant policies must be meticulously crafted to uphold fundamental human and EU legal rights, thereby shaping future immigration law interpretations and implementations in the UK.