Olorunfunmilayo Oluwaseun Akinsanya v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mostyn |
| Judgment Date | 09 June 2021 |
| Neutral Citation | [2021] EWHC 1535 (Admin) |
| Date | 09 June 2021 |
| Docket Number | Case No: CO/4877/2020 |
| Court | Queen's Bench Division (Administrative Court) |
The Queen on the application of
[2021] EWHC 1535 (Admin)
Mr Justice Mostyn
Case No: CO/4877/2020
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Simon Cox and Michael Spencer (instructed by the Hackney Community Law Centre) for the Claimant
Colin Thomann and Julia Smyth (instructed by GLD) for the Defendant
Hearing date: 20 May 2021
Approved Judgment
The claimant's principal application is for an order quashing the decision made by the defendant Secretary of State on 29 September 2020 refusing her application under the EU Settlement Scheme (“EUSS”) as a ‘ person with a Zambrano right to reside’. She also seeks other declaratory and quashing relief.
Essentially I have to decide whether the Secretary of State (then the Rt. Hon. Sajid Javid MP), in promulgating Appendix EU to the Immigration Rules on 7 March 2019, erred in law in his understanding of the scope of:
i) The Zambrano jurisprudence; and
ii) Regulation 16 of the Immigration (European Economic Area) Regulations 2016 (SI 2016/1052) (“Regulation 16”).
If the answer is yes then it is agreed that the following relief should be awarded:
i) An order quashing the decision of 29 September 2020;
ii) A declaration that the Secretary of State erred in law when framing in Annex 1 to Appendix EU to the Immigration Rules the definition of a “person with a Zambrano right to reside” under paragraph (b) as “a person …. without leave to enter or remain in the UK, unless this was granted under this Appendix” (“para (b)”) *;
iii) A declaration that the Guidance issued by the Secretary of State “Free Movement Rights: derivative rights of residence” (version 5.0 of 2 May 2019) and “EU Settlement Scheme: person with a Zambrano right to reside” (version 4.0 of 27 April 2021) are legally erroneous insofar as they state that a Zambrano right to reside is not available to a person if he/she has limited leave to enter or remain in the UK; and
iv) An order fixing a further hearing 21 days after the date of this judgment for the court to consider any further quashing relief.
The facts
The claimant is a Nigerian national, but has been in the UK since 2006. She is 39 years old and has four children, one of whom, A (aged 10), is a British national. She is the sole carer of A.
The claimant first came to the UK on a six-month visitor visa, which expired on 19 July 2006, and on 12 September 2006 she was granted a two-year family visit visa, which expired on 12 September 2008.
On 5 November 2012, when A was one year old, the claimant applied for a derivative residence card as a ‘ Zambrano carer’ of A. Initially the application was refused by the Secretary of State, but the claimant then appealed that decision to the First-tier Tribunal, which allowed the appeal. Consequently, the Secretary of State (then the Rt. Hon. Theresa May MP) agreed to reconsider her decision, and on 15 September 2014, the claimant was issued with a derivative residence card as a Zambrano carer. This card was valid until 15 September 2019.
In 2017, the claimant could not work due to ill health. She had been hospitalised following a collapse while she was pregnant with her third child and had to cease work as a result of high blood pressure. In January 2018, the claimant's landlord began eviction proceedings against her, and on 26 January 2018 the claimant applied for the ‘no recourse to public funds’ condition on her right to reside to be lifted on the basis of destitution.
On 12 February 2018, the Secretary of State refused the application on the basis that Zambrano carers are not eligible to receive public funds. The Secretary of State told the claimant that any such application would have to be made by way of an application for leave to remain in the UK under Appendix FM to the Immigration Rules.
On 4 April 2019, the claimant duly applied for leave to remain under Appendix FM, on the basis of the family/private life 10-year route. On 12 July 2019, the Secretary of State granted the claimant and her children 30 months' limited leave to remain under Appendix FM until 11 January 2022, with no condition preventing recourse to public funds.
On 30 March 2019, applications for the EUSS in advance of the UK's departure from the EU had opened. On 29 January 2020, the claimant applied to the EU Settlement Scheme for indefinite leave to remain under Appendix EU of the Immigration Rules, on the basis that she was a Zambrano carer with five years' continuous residence.
However, as mentioned above, on 29 September 2020 the Secretary of State decided that the claimant was not eligible for the EUSS because she had already been granted limited leave to remain, and so was barred by paragraph (b) of the definition of ‘person with a Zambrano right to reside’ in Appendix EU. That is the decision which is challenged before me.
The claimant's claim for judicial review of that decision was issued on 31 December 2020, and permission was originally refused on the papers by Calver J. However, Philip Mott QC (sitting as a deputy High Court judge) granted permission at an oral hearing on 14 April 2021.
The scope of the Zambrano jurisprudence
Ruiz Zambrano v Office National de l'Emploi (C-34/09), [2012] QB 265 was decided by the Court of Justice of the European Union (“CJEU”) on 8 March 2011. The applicant, Ruiz Zambrano, and his wife were both Colombian nationals who found their way to Belgium, where they claimed asylum on 14 April 1999. This was refused by the Commissariat-General for Refugees and Stateless Persons on 11 September 2000. However, the refusal order included a non-refoulement clause stating that they should not be sent back to Colombia in view of the civil war in that country. On 2 October 2001 Mr Zambrano entered into an employment contract in Belgium for an unlimited period of time. In September 2003 the couple's second child, Diego, was born in Belgium, followed by their third child, Jessica, born in August 2005. Because they were born in Belgium, both of these children acquired Belgian nationality.
On 9 April 2004 Mr and Mrs Zambrano applied for permanent residence under Belgian law, relying on Article 3 of the Fourth Protocol to the European Convention on Human Rights, which prevents a child from being required to leave the territory of the state of which he or she is a national. That application was rejected on 8 November 2005, and Mrs Zambrano's identical application was rejected on 26 January 2006. Mr and Mrs Zambrano challenged these rejections.
Meanwhile, Mr Zambrano lost his job and applied for unemployment benefit. That was turned down. The decision was challenged. In the course of that challenge the Office des Étrangers confirmed that:
“The applicant and his wife cannot pursue any employment, but no expulsion measure can be taken against them because their application for legalising their situation is still under consideration.”
Although the precise details are somewhat convoluted, the essential challenges by Mr and Mrs Zambrano were, first, to the rejection of their applications for permanent residence made on 9 April 2004, and, second, to the rejection of Mr Zambrano's application for unemployment benefit. The question that was decided by the CJEU was referred to it by the court considering the challenge to the refusal of unemployment benefit.
Since 30 April 2009 Mr Zambrano had been given a provisional and renewable residence permit and was entitled to a “Type C” work permit. Such a permit is valid for one year, but is renewable. It allows the worker to work for multiple employers. It is usually issued to temporary migrant agricultural or domestic workers, or to those whose length of stay in Belgium is unconfirmed, such as asylum seekers.
The Belgian court referred three questions to the CJEU. In its judgment at [36] the court distilled the questions as follows:
“Whether the provisions of the Treaty on the Functioning of the European Union on European Union citizenship are to be interpreted as meaning that they confer on a relative in the ascending line who is a third country national, on whom his minor children, who are European Union citizens, are dependent, a right of residence in the member state of which they are nationals and in which they reside, and also exempt him from having to obtain a work permit in that member state.”
The case was heard on 26 January 2010. By that date, as explained above, Mr Zambrano had been given a limited residence permit and a work permit. That limited entitlement did not have the effect of rendering the questions posed moot or academic. Indeed no one even suggested this.
In his skeleton argument for the Secretary of State Mr Thomann wrote:
“27. In the Zambrano case, there was no question as to the effect of refusing a right of residence to the parents: both were third-country nationals with no other lawful basis to stay, and so their children would be obliged to accompany them if a right of residence were not granted.
28. It has, in other words, been a fundamental condition for the application of the Zambrano principle from its inception that there be compulsion to leave the EU if the right of residence is not granted. And, in practice, the CJEU's jurisprudence has imposed a high threshold for compulsion, to be demonstrated clearly.”
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...
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