Derivative residence rights and the EU Settlement Scheme

Derivative residence rights and the EU Settlement Scheme: R(Akinsanya and Aning-Adjei) v Secretary of State for the Home department [2024] EWHC 469 (Admin).

On 30 July 2024, the Court of Appeal refused the claimants permission to appeal against the judgment of Mr Justice Eyre R(Akinsanya and Aning-Adjei) v SSHD [2024] EWHC 469 (Admin). The Court’s decision closes a significant chapter in the long-running litigation on the route to settlement for Zambrano carers under the EU Settlement Scheme. This article is aimed at helping those affected and their advisers to understand the latest judgment and consider what if anything they can do next to hasten their path to settlement.

Summary

• A ‘Zambrano carer’ is the third country (i.e. non-EEA) national primary carer of a British citizen child or dependent who had a right to reside before Brexit pursuant to the Court’s judgment in C-34/09 Ruiz Zambrano.  Many Zambrano carers will also have been eligible for leave to remain under the parent route in Appendix FM.
• Unless there is a change in policy, the latest judgment means Zambrano carers who had limited leave to remain under Appendix EU at the end of the transition period will continue to be excluded from entitlement to pre-settled status or settled status under the Zambrano route in the EU Settlement Scheme. The Court has rejected any attempt to challenge paragraph (a)(iv) of the definition of a person with a Zambrano right to reside in Appendix EU, which therefore remains in force.
• Zambrano carers who did not have limited leave to remain during the relevant period should, on the other hand, be entitled to pre-settled or settled status under Appendix EU, provided they meet the other criteria. The current version of the Home Office’s Guidance is wrong for suggesting that such carers must show that they did not have a realistic prospect of obtaining limited leave had they applied for it and anyone who has been refused Appendix EU leave on this basis will have a good argument on appeal. 
• Similarly, primary carers of EU citizen children (Chen carers) and of the children of former workers in education (Ibrahim / Teixeira carers) are not excluded from the EU Settlement Scheme solely because they either had or could have obtained leave to remain under Appendix FM.  The equivalent Home Office Guidance is also wrong in this respect and anyone who has been refused Appendix EU leave on this basis will have a good argument on appeal.
• It may be possible for Zambrano carers to rely on periods before they were granted leave to remain under Appendix FM but during which they had a right to reside under EU law or the EEA Regulations as counting towards the 10 years Long Residence for indefinite leave to remain. This argument is as yet untested, so potential applicants should get specialist advice before applying.

Whom does this affect?

Prior to the UK’s departure from the EU, thousands of third country (i.e. non-European) primary carers of British and other dependents living in the UK had a right of residence under EU law pursuant to the European Court of Justice’s decision in C-34/09 Ruiz Zambrano. This right of residence arose directly under the Treaties where necessary to prevent the British citizen child or dependent from leaving the EU and therefore losing the enjoyment of the benefit of EU citizenship.  A similar ‘derivative’ right of residence existed for the primary carers of EU citizen children (pursuant to C-200/02 Chen) and for the primary carers of the children of former EU workers (C-480/08 Ibrahim and C-310/08 Teixeira). These groups are referred to by the Home Office (and in this article) as Zambrano carers, Chen carers and Ibrahim / Teixeira carers respectively.

The UK-EU Withdrawal Agreement provides for a route to settlement after five years for Chen and Ibrahim / Teixeira carers who were resident in the UK as such prior to the end of the transition period (i.e. 31 December 2020), but does not cover Zambrano carers. Nevertheless, at an early stage in the formation of the EU Settlement Scheme, the UK Government decided that it intended to include a route to settlement for Zambrano carers also, as it saw there was little justification for distinguishing between Zambrano carers and others with a derivative right to reside.  This was reflected in Appendix EU to the Immigration Rules by the inclusion of settlement routes for those defined as a ‘person with a Zambrano right to reside’ (i.e. Zambrano carers) and a ‘person with a derivative right to reside’ (i.e. Chen and Ibrahim / Teixeira carers).

The Akinsanya / Aning-Adjei litigation has been about whether the Secretary of State properly understood EU and domestic law when formulating the definition of a person with a Zambrano right to reside in Appendix EU. It also has implications for the interpretation of the Zambrano definition in Appendix EU, as well as the interpretation of the definition of a person with a derivative right to reside for Chen and Ibrahim / Teixeira carers.

What is the problem with the Zambrano definition?

Despite the Government’s initially generous intention, the definition of a person with a Zambrano right to reside in Appendix EU is drafted very restrictively. Through what is now paragraph (a)(iv) of the definition it expressly excludes anyone who has or had limited leave to remain on another basis at the end of the transition period or during any of the period on which they seek to rely.  Since most Zambrano carers would also have been eligible for limited leave to remain under the parent route in Appendix FM, this effectively excludes anyone who applied for such leave, even though at the time they would have had no idea they were closing off a more advantageous route to settlement.

A further complication is that Home Office guidance argues that even Zambrano carers who never applied for limited leave under Appendix FM are excluded from the Zambrano definition if they would have had a reasonable prospect of obtaining it, because in such cases there was no compulsion on the primary carer to leave the UK (and therefore no need to grant a right to reside to protect the child’s right to EU citizenship).  The guidance for Chen and Teixeira carers is similarly worded, despite the absence of any equivalent to paragraph (a)(iv) in the definition of a person with a derivative right to reside, effectively excluding most of them also.  In both guidance documents this is referred to as the ‘Velaj’ assessment, purportedly based on the Home Office’s interpretation of the Court of Appeal’s decision in Velaj v SSHD [2022] EWCA Civ 767 (see further below).

The result is that, as at December 2023, only 2,250 applications for pre-settled or settled status under the Zambrano route had been granted out of 15,300 applications.  Since August 2023, the Zambrano route has been closed to new applications.

The 5-year route to settlement under Appendix EU is significantly more favourable than the 10-year route to settlement under Appendix FM. Not only is the route to settlement much shorter, there is no fee and no requirement to pay the Immigration Health Surcharge.  By contrast, Appendix FM leave is subject to a no recourse to public funds restriction (subject to proving destitution) and requires renewal every 30 months with significant fees and NHS surcharges. This can trap many foreign national parents of British citizen children in a precarious cycle of poverty.

What happened in the first judicial review?

In Akinsanya v SSHD [2022] EWCA Civ 37, the Court of Appeal decided that the Home Secretary had misunderstood the scope of the domestic Immigration (EEA) Regulations 2016 when drafting the definition of a person with a right to reside under Appendix EU, but had correctly understood the scope of EU law. That was because the domestic EEA Regulations (as interpreted by the Court) included Zambrano carers who had limited leave to remain, even though properly understood they had no right to reside directly under EU law.

Following the Court of Appeal’s judgment, the Secretary of State agreed to reconsider the Zambrano definition in Appendix EU.  In June 2022, it was announced that the rules would remain unchanged. Ms Akinsanya and Ms Aning Adjei (who were both Zambrano carers who had leave to remain under Appendix FM) then sought to challenge this reconsideration decision in a fresh judicial review.

Why did the Home Secretary leave the rules unchanged?

Documents disclosed during the second judicial review show that the Home Secretary was presented with three options during the reconsideration process: option 1 was to include all those who otherwise met the Zambrano definition, regardless of whether or not they had leave to remain under Appendix FM; option 2 was to exclude those with leave to remain and those who had a realistic prospect of obtaining it; and option 3 was to exclude those with limited leave to remain but include everyone else. Sections of the memoranda explaining the rationale behind these options were redacted as subject to legal professional privilege. As a result, it remains unclear whether, when deciding to leave the rules unchanged, the Home Secretary believed she was achieving option 2 or option 3. 

In the meantime, the Court of Appeal handed down its judgment in Velaj v SSHD [2022] EWCA Civ 767.  This was a case concerned with whether a third country national who was the joint carer with his British citizen wife of a British citizen child had a right to reside under the EEA Regulations.  The Court of Appeal held that he did not and went on to make some non-binding comments about the nature of the Zambrano right to reside.

Updated guidance published soon afterwards confirmed that the Home Secretary’s position was that the effect of Velaj was that anyone who had a realistic prospect of obtaining leave to remain was excluded from the Zambrano definition, even if they had never applied for such leave. The derivative rights guidance was revised in similar terms. This was referred to by the Home Office as the ‘Velaj assessment’.

What did the Court decide in the second judicial review?

In R(Akinsanya and Aning-Adjei) v SSHD  [2024] EWHC 469 (Admin), the Administrative Court decided that the Home Secretary’s guidance was wrong in suggesting that anyone who did not have leave to remain under Appendix FM but had a realistic prospect of obtaining did not have a right to reside under EU law and was therefore excluded from the Zambrano definition in Appendix EU. There is no separate ‘Velaj assessment’ required.

However, Mr Justice Eyre went on to conclude that this had no material effect on the Home Secretary’s reconsideration decision or paragraph (a)(iv), since this only affected those who had leave to remain and who therefore had no right to reside under EU law in any event.  He accordingly refused the claimants any relief and dismissed their alternative arguments on irrationality / discrimination grounds.

The result is that while Mr Justice Eyre’s findings confirm the Home Office guidance is wrong in relation to the ‘realistic prospect’ cohort of Zambrano carers - since confirmed by the Upper Tribunal in Maisiri (EUSS; Zambrano; ‘Realistic Prospect’ policy) [2024] UKUT 235 (IAC) - the express exclusion of those with leave to remain in paragraph (a)(iv) of the Zambrano definition remains. 

The Home Secretary’s legal representatives have said that the Guidance is being revised, but this has not yet been published at the time of writing.  Guidance, of course, is not binding on the Tribunal.

What does all this mean for me / my client?

The Zambrano route is now closed to new EUSS applications.  However, it is likely that many Zambrano carers, as well as Chen and Ibrahim / Teixeira carers, will have pending decisions or reviews or ongoing EUSS appeals.  Whether those can succeed will depend on the circumstances.  In summary:

a. Zambrano carers who did not have leave to remain under Appendix FM at the end of the transition period but have been refused leave under Appendix EU because they had a reasonable prospect of obtaining Appendix FM leave should have a good argument on appeal (all other things being equal) relying on Maisiri [2024] UKUT 235 (IAC).

b. The same goes for any Chen and Teixeira carers who were refused under Appendix EU either because they had limited leave to remain under Appendix FM or because they had a reasonable prospect of obtaining it. There is no equivalent to paragraph (a)(iv) in the definition of a person with a derivative right to reside, so Appendix FM leave status should be irrelevant for these applicants.

c. However, unless there is a change in the rules, any Zambrano carer who in fact had Appendix FM leave at the end of the transition period or at any point since will likely be excluded from the definition of a person with a Zambrano right to reside by virtue of paragraph (a)(iv) of that definition. There may be little point in them continuing with their EUSS appeal.

Others may have been refused leave under Appendix FM based on the incorrect guidance, but do not have an outstanding appeal, for example because they chose not to appeal or because their appeal was dismissed.  Some may also have decided not to make any application at all based on the guidance, despite being eligible. The closure of the Zambrano route and the expiry of the time limit for other applications under Appendix EU presents a difficulty for those applicants. Depending on the circumstances, the solution may be to request a reconsideration from the Home Office, submit a late appeal to the Tribunal or (at least for Chen and Teixeira cases) submit a late application arguing that the confirmation from the Court and Tribunal that the guidance was unlawful constitutes reasonable grounds for lateness. The Immigration Law Practitioner Group are of the view that the Home Office should withdraw all such decisions and come to a new decision of its own accord and intend to write to the Home Office to suggest that this be dealt with at a policy level.  In the meantime, applicants should seek specialist advice.

Are there any other options for Zambrano carers who had Appendix FM leave?

There may be a slight glimmer of hope for those Zambrano carers who have been excluded from settlement under Appendix EU because they have Appendix FM leave. It may be possible to argue that they should be entitled to indefinite under the Long Residence rule (now Appendix Long Residence) by including any period during which they had a right to reside under EU law / the EEA Regulations prior to the end of the transition period together with their period of Appendix FM leave.  In effect, this could include anyone who has been caring for a child who has been British for at least 10 years. 

Appendix Long Residence does not expressly cover persons with derivative rights to reside under the EEA Regs (only EEA nationals and their family members) – see LR11.1(c).  However, it may be possible to argue that Zambrano carers were “exempt from immigration control” (see LR11.1(b)) while they had a right of residence under EU law or the EEA Regulations by virtue of s7 of the Immigration Act 1988. As far as the authors are aware, there is no definition of “exempt from immigration control” in legislation or guidance, but on its face s7 of the 1988 Act had the effect of exempting those with a derivative right to reside from immigration control. (While a derivative right of residence was excluded for the purposes of permanent residence under regulation 15(2) of the EEA Regulations, there is no equivalent express exclusion in the Long Residence rules). Alternatively, it might be argued that any exclusion of derivative rights holders from applying for long residence would be irrational and discriminatory.

This approach is (as far as we are aware) untested. Further, the fee for applying for indefinite leave to remain is £2,885 and there is no provision for a fee waiver. The position may therefore need to be confirmed at a policy level before applicants can be safely advised to apply.