Waiting in the wings: Zambrano carers to get EUSS re-think

The Court of Appeal has dismissed the Home Secretary’s appeal in Akinsanya, confirming that she misinterpreted UK law when setting the Immigration Rules for Zambrano carers under the EU Settlement Scheme (‘EUSS’). The result is that she will now need to reconsider, and potentially re-draft, Appendix EU of the Immigration Rules as it relates to Zambrano carers. This could have a positive impact on thousands of parents of British citizen children in the UK.

What is a Zambrano carer?

A ‘Zambrano carer’ is a non-EEA national parent or carer of a dependent British citizen child, where the British citizen would be unable to reside in the UK if the carer had to leave. Following the Court of Justice of the EU’s decision in Ruiz Zambrano v Office National de l’Emploi (C-34/09) [2012] QB 265, Zambrano carers have been recognised to have a right to reside under EU law. The Zambrano judgment was given effect in UK law through amendments to the Immigration (European Economic Area) Regulations in 2012 and 2016.

Following Brexit, the Home Secretary had intended to extend EUSS leave to all Zambrano carers. However, the EUSS Rules in Appendix EU were drafted restrictively so as to exclude anyone who already had leave to remain on another basis (for example on private and family life grounds under Appendix FM of the Immigration Rules). Home Office guidance went further and excluded anyone who could potentially be granted leave under Appendix FM but had not applied.  In effect, the Secretary of State gave with one hand and took away with the other. Almost all third country national parents of British citizen children would potentially be eligible for leave under Appendix FM, provided they did not fail the suitability conditions (eg for criminality). Indefinite leave to remain, aka settled status, under the EUSS would be granted on a no-fee application after 5 years with Zambrano status, regardless of when that status was recognised. This is far preferable to the rules under Appendix FM, which require 10 years of leave, renewed every 30 months with complex and often expensive renewal applications.

What did the Court of Appeal decide?

We wrote about the High Court’s judgment here.  Mostyn J found that, in excluding carers with limited leave from the definition of a person with a Zambrano right to reside, the Secretary of State had misinterpreted both (i) the Zambrano jurisprudence under EU law and (ii) regulation 16 of the domestic EEA Regulations.

The Court of Appeal agreed with the Secretary of State on the EU law issue (i), but dismissed her appeal on the domestic law issue (ii). Contrary to Mostyn J, Underhill LJ (with whom the other two judges agreed) held that the Home Secretary had correctly interpreted the scope of the Zambrano right under EU law.  After reviewing the Luxembourg jurisprudence, he concluded that Zambrano rights do not arise so long as the carer has a domestic (or other EU) right to reside (and to work and receive the necessary social assistance).  If, however, the carer loses their domestic right to reside, “Zambrano is always waiting in the wings, and so long as the Zambrano circumstances obtain the carer can never be put in a position where their residence is unlawful” (para 57).

On issue (ii), however, the Court agreed with Mostyn J that the Secretary of State had misinterpreted regulation 16 of the EEA Regulations.  The language of the provision was “simply too clear” to be read down, and did not expressly or impliedly exclude those with limited leave to remain from Zambrano leave (para. 66).

What does this mean for Zambrano carers?

The Court amended Mostyn J’s declaration to confirm that the Secretary of State had “erred in law in her understanding of regulation 16” of the EEA Regs.  Mostyn J’s second declaration stands untouched, which confirms that the Home Office derivative rights and EUSS Guidance are “legally erroneous” insofar as they state that persons with limited leave to remain cannot qualify under regulation 16. 

This should mean that the Home Office stops applying guidance excluding from EUSS those Zambrano carers who have no leave to remain, but only the potential entitlement to Appendix FM leave.  At paragraph 40, the Court of Appeal recorded that the Home Office’s own case was that EU Zambrano rights arise “when the third country national parent did not otherwise enjoy a right to reside in the member state in question” and end “the moment that she was granted leave to remain”. At paragraph 57, the Court of Appeal agreed, holding that the Zambrano circumstances will arise “as soon as the carer loses their right to reside as a matter of domestic law.”

Zambrano carers without leave to remain (or with a form of leave that does not provide the right to work) should urgently consider whether to apply under EUSS in the light of the Court of Appeal’s judgment.

What about Zambrano carers who have limited leave?

In a detailed consent order appended to the Administrative Court’s judgment, the Home Secretary confirmed that she would re-consider the EUSS rules as they apply to Zambrano carers with limited leave and would introduce a mechanism for accepting late applications. In the meantime, applications have been put on hold. 

Following the Court of Appeal’s judgment, the Home Office has indicated that the reconsideration process is underway and that it expects to complete that reconsideration and to promulgate its outcome by 25 April 2022.

It is difficult to state exhaustively the factors the Secretary of State will need to take into account when reconsidering the rules or what lawful options will be available to her.  A crucial issue will be to define the policy intention in including Zambrano carers within the scope of Appendix EU in the first place.  This is not entirely clear, as the Court of Appeal noted at paragraph 57 of its judgment:

“If the Secretary of State's purpose in wanting to "understand the Zambrano jurisprudence" was indeed to restrict rights under the EUSS to people whose right to reside at the relevant dates directly depended on Zambrano, then her approach was consistent with the EU case-law. But if her intention was to extend those rights to all those carers whose removal would result in an EU citizen dependant having to leave the UK, then the exclusion of carers who currently had leave to remain on some other basis would evidently be inconsistent with that purpose. What the Secretary of State's purpose was is not something that this Court can answer.”