THE ‘AKINSANYA’ CASE & WHAT HAPPENED NEXT
On 25 January 2022, the Court of Appeal gave its decision in a legal case called ‘Akinsanya’ about the rights of primary carers of British citizen children to apply for immigration status under the EU Settlement Scheme.
This Rights of Women update gives some background information, a summary of what the Court of Appeal said and what Government has done since.
We have updated this publication following changes to the EU Settlement Scheme rules in November 2022 and changes to Home Office decision making guidance in December 2022.
We have also updated this publication after the Home Office announcement on 17 July 2023 that the EU Settlement Scheme Zambrano route would close to new applications very soon. The last day for new applications to the EU Settlement Scheme Zambrano route is 8 August 2023.
WHO SHOULD READ THIS UPDATE?
This update may be relevant to you if:
- you are not a British or EU citizen; AND
- you do not already have indefinite leave: AND
- you do not already have status under the EU Settlement Scheme; AND
- you are the parent or primary carer of a British citizen child living in the UK; AND
- you were the parent or primary carer of a British citizen child living in the UK before 31 December 2020.
When the UK was still a member of the European Union (EU), the law was that the primary carer (usually parent) of a British citizen child must have a right to reside in the UK if their child would be unable to live in the UK without them. These primary carers were known as ‘Zambrano carers’ and were said to have a ‘Zambrano right to reside’ or a ‘derivative right to reside’.
After the UK left the EU, from 31 December 2020, EU law stopped applying in the UK.
The EU Settlement Scheme was brought in to enable those in the UK under EU law to apply to remain in the UK after EU law stopped applying in the UK.
In May 2019, primary carers of a British citizen child – ‘Zambrano carers’ – were included in the EU Settlement Scheme. This enabled ‘Zambrano carers’ to make a free immigration application for pre-settled status (five years limited leave) or settled status (indefinite leave).
Those who had been caring for a British child for less than 5 years could potentially apply for pre-settled status (which does not give entitlement to welfare benefits), and those caring for a British child for more than 5 years could potentially apply for settled status (which does give entitlement to welfare benefits).
When the UK Government wrote the rules of the EU Settlement Scheme for Zambrano carers in 2019, they made it so that anyone who already had leave in another immigration category (e.g. limited leave as the parent of a British child) would be refused under the EU Settlement Scheme. This prevented many non-EU national parents of British children from applying to the EU Settlement Scheme because they had previously done the right thing by getting a grant of limited leave as the parent of a British child.
A Court case was brought to challenge the legality of this position. The UK Government indicated that, whilst the Court case was ongoing, they would not decide any Zambrano applications to the EU Settlement Scheme that might be affected by the judgement.
WHAT DID THE COURT OF APPEAL DECIDE IN THE ‘AKINSANYA’ CASE?
Ms Akinsanya is a Nigerian mother of a British child. When she made her EU Settlement Scheme application in 2020, she already had limited leave as the parent of a British child. She applied to the EU Settlement Scheme asking for a grant of settled status but was refused by the Home Office because she already had leave. Ms Akinsanya took her case to court and won the first stage of her case in the High Court in June 2021. The UK Government challenged the case further by appealing to the Court of Appeal who made a decision on 25 January 2022.
The Court of Appeal decided that the UK Government lost the argument and Ms Akinsanya won her case. But the Court’s decision on its own was not enough to mean Ms Akinsanya, or anyone in a similar position, should succeed in their EU Settlement Scheme applications.
That is because the Court said that the UK Government had acted unlawfully in writing the rules of the EU Settlement Scheme in the way they did. However, the Court did not tell the UK Government what the rules should be. Also, the Court agreed with the UK Government that the correct interpretation of EU law is that a person is not a Zambrano carer during any period in which they also had limited leave.
After the Court of Appeal decision, it was then up to the UK Government to look again at the rules of the EU Settlement Scheme as they related to ‘Zambrano carers’ and make any changes Government thought would be appropriate and lawful given the findings of the Court.
GOVERNMENT’S ANNOUNCEMENT ON 13 JUNE 2022
On 13 June 2022, the Government announced the outcome of its review into the EU Settlement Scheme Zambrano route after the Court of Appeal case and resumed making decisions on Zambrano applications that had previously been on hold pending the announcement.
The UK Government confirmed its policy that it will not treat someone with limited leave as a Zambrano carer (note: this does not apply where someone has pre-settled status, a type of limited leave, under the EU Settlement Scheme). This means that the UK Government is adopting the EU law rule that a person cannot qualify for a Zambrano right to reside at any time they also have limited leave.
The effect of this is that anyone who had limited leave on 31 December 2020 (unless they had pre-settled status under the EU Settlement Scheme) is not eligible under the Zambrano route. In addition, where someone did not have limited leave on 31 December 2020, but had limited leave before or after this date, they will not be able to rely on any period when they had limited leave as contributing towards their residence under the Zambrano route.
When Government published its new Zambrano guidance on 13 June 2022, it accepted that those without limited leave could potentially qualify under the Zambrano route and the fact that an individual could qualify under another immigration route instead did not prevent them from qualifying as a Zambrano carer. Unfortunately, Government has since changed its position on this in new guidance published in December 2022.
CHANGE TO ZAMBRANO RULES ON 9 NOVEMBER 2022
A few months after its announcement, Government changed the rules of the EU Settlement Scheme as they relate to Zambrano carers. On the face of it, the changes were mainly to bring all the eligibility criteria relating to the Zambrano route under the rules of the EU Settlement Scheme itself, instead of the previous situation where some of the important eligibility criteria were in the EEA Regulations that used to apply before Brexit took effect.
The new rules make clear that anyone relying on the Zambrano route must have met the eligibility criteria on 31 December 2020. In adding this provision, Government is making it clear that people cannot rely on a period in the past if they did not continue to meet the eligibility criteria on 31 December 2020.
In addition, the new rules make clear that even though it is not possible to rely on any period when a person had limited leave under another immigration category, periods of time with so-called ‘section 3C leave’ can be counted towards a qualifying period. ‘Section 3C leave’ is the status a person has once their leave expires but they are waiting for a decision on an extension application that was made in time before that last period of leave expired.
CHANGE TO ZAMBRANO POLICY GUIDANCE ON 14 DECEMBER 2022
On 14 December 2022, Government published a new version of the policy guidance its caseworkers must follow when making decisions on EU Settlement Scheme Zambrano applications.
The guidance included a significant change in policy relating to one of the eligibility criteria under the Zambrano route.
In simple terms, the guidance states that a parent of a British child would not have to leave the UK if the parent had another type of immigration status, and so where a parent could obtain immigration status outside the EUSS by making another type of immigration application, they would not in fact have to leave the UK and would, therefore, not meet the rules of the Zambrano category.
The guidance is more complicated than this, and every case is different, however some factors that will be taken into account are:
- whether you have ever had limited leave under the partner / parent routes of Appendix FM in the past
- whether you have recently been granted limited leave under the partner / parent routes of Appendix FM
- whether you have in the past been refused under the partner / parent routes of Appendix FM but your circumstances have since changed
- whether you have never applied for limited leave under the partner / parent routes of Appendix FM but in theory you could have
The caseworker deciding your Zambrano application will have to decide whether you could realistically have been granted status under another immigration category (mainly the Appendix FM parent route) if you had made an application. If the caseworker decides you could now or in the past have qualified in another immigration category, they will use this as a reason to refuse your Zambrano application.
CHANGE TO ZAMBRANO RULES ON 9 AUGUST 2023
The Home Office announced changes to the immigration rules relating to the EU Settlement Scheme on 17 July 2023.
These changes to the rules mean that the EU Settlement Scheme Zambrano route will close to new applications and 8 August 2023 is the last day for a new Zambrano application.
A new Zambrano application made on or after 9 August 2023 will be rejected by the Home Office without consideration.
The Zambrano route will stay open for the following which are not considered new applications:
- Anyone who has pre-settled status and would like to apply for settled status in future
- Anyone who has already made a Zambrano application before the deadline of 8 August 2023 and that has not yet been decided
- Anyone who has already made a Zambrano application before the deadline of 8 August 2023 and received a refusal which they are challenging by way of administrative review or appeal
FAQ: WHAT IF I HAVE ALREADY MADE AN EU SETTLEMENT SCHEME APPLICATION?
If you have already made an EU Settlement Scheme application as a Zambrano carer and are still waiting for a decision from the Home Office, it is likely you will receive a decision soon. The new rules and guidance explained above will apply to your decision.
You should seek updated legal advice about your pending EU Settlement Scheme application and how it might be affected by the new rules and guidance.
Your Zambrano application will be refused because you have limited leave in another category if:
- You are a person who had limited leave (except pre-settled status under the EUSS) on 31 December 2020.
- You did not have limited leave (except pre-settled status under the EUSS) on 31 December 2020, but you have been granted limited leave since that date and then went on to make an EUSS Zambrano application (unless you had already accrued 5 years continuous residence as a Zambrano carer before being granted limited leave)
Your Zambrano application may be refused because you could have obtained limited leave in another immigration category if:
- You have never had limited leave and have made an application to the EU Settlement Scheme
- You have had limited leave in the past, but didn’t have limited leave on 31 December 2020 and haven’t held it since
- You have limited leave now, which has been granted to you since 31 December 2020, and before this grant of leave you did not have leave for at least five years and throughout that five year period you were a Zambrano carer
Before any Zambrano application is refused, the Home Office must consider whether you qualify under any other category of the EU Settlement Scheme and so it is important to provide the Home Office with information about any other EU Settlement Scheme categories you may qualify under e.g. as the current / past family member of an EU citizen.
If your Zambrano application has not yet been decided, and you do not currently have limited leave or you have not already made a human rights application to the Home Office separate from your EU Settlement Scheme application, you should seek legal advice as soon as possible.
FAQ: WHAT IF MY ZAMBRANO APPLICATION IS REFUSED?
There are options to challenge a refusal that is made under the EU Settlement Scheme. These options include:
- an application for administrative review, which is an internal review conducted by the Home Office. Such an application costs £80 and must be made within 28 days of receiving the decision.
- an appeal to an independent court called the First-tier Tribunal (Immigration & Asylum Chamber). Such an appeal costs £140 and must be made within 14 days of receiving the decision. If you choose to apply for administrative review first and that is unsuccessful, you can still make an appeal within 14 days of the administrative review refusal.
Whether you choose to challenge the refusal depends on various factors, one of which should be whether your challenge stands any chance of succeeding. You will likely need advice from a lawyer to help you understand whether it is worthwhile challenging a refusal. You should get legal advice as soon as you receive a decision so that you can take action before the relevant deadlines expire. You generally cannot challenge a refusal if you miss the deadlines.
One factor that lawyers will consider when advising on whether to challenge a refusal is whether there are legal grounds to challenge the new rules and policy guidance itself (rather than simply how they are applied to your individual case). This is a complex question which requires consideration by a lawyer who specialises in this area.
If you are unable to get legal advice before the above deadlines to challenge a refusal, you should consider making an application for administrative review or appeal in time to protect your position while you continue to try to get legal advice.
Previously it may have been possible to apply again after a refusal rather than challenging the refusal. This will not be possible after the Zambrano route closes for new applications on 8 August 2023. Therefore it is important to make use of your rights to challenge a refusal by way of administrative review or appeal.
The ‘Akinsanya’ case was brought by the legal team at Hackney Law Centre who continue to pursue Ms Akinsanya’s legal challenge against the Home Office in the High Court. Their website contains helpful information including updates on the ongoing challenge: https://hclc.org.uk/news.
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