Olorunfunmilayo Oluwaseun Akinsanya v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Underhill,Bean LJ,Andrews LJ |
| Judgment Date | 25 January 2022 |
| Neutral Citation | [2022] EWCA Civ 37 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2021-000662 |
[2022] EWCA Civ 37
Lord Justice Underhill
(Vice-President of the Court of Appeal (Civil Division))
Lord Justice Bean
and
Lady Justice Andrews
Case No: CA-2021-000662
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Mostyn
CO/4877/2020
Royal Courts of Justice
Strand, London, WC2A 2LL
David Blundell QC and Julia Smyth (instructed by the Treasury Solicitor) for the Appellant
Simon Cox and Michael Spencer (instructed by Hackney Community Law Centre) for the Claimant
Hearing date: 7 December 2021
Approved Judgment
INTRODUCTION
The Claimant, who is the Respondent before us, is a Nigerian national. She came to this country in 2006. She has four children, of whom she is the sole carer. The eldest, Abraham, who was born on 26 October 2011, is a British citizen. On 15 September 2014 she was granted a “derivative residence card” under the Immigration (European Economic Area) Regulations 2006, as amended, on the basis that she was Abraham's “ Zambrano carer” (a term which I explain below). On 4 April 2019 she applied for limited leave to remain under Appendix FM to the Immigration Rules, on the basis that she was the sole responsible parent of a British citizen child living in the UK (see paragraph R-LTRPT, read with paragraph E-LTRPT.2). On 12 July 2019 the application was granted, for a thirty-month period expiring on 11 January 2022.
On 19 January 2020 the Claimant applied to the Secretary of State for the Home Department, who is the Appellant, for indefinite leave to remain (“ILR”) under the EU Settlement Scheme (“the EUSS”). By letter from the Home Office dated 29 September 2020 her application was refused.
On 31 December 2020 the Claimant issued judicial review proceedings challenging that decision. On 9 June 2021 Mostyn J upheld her challenge.
The Secretary of State appeals against Mostyn J's decision with leave granted by Dingemans LJ. She is represented by Mr David Blundell QC, leading Ms Julia Smyth. The Claimant is represented by Mr Simon Cox, leading Mr Michael Spencer. Before the Judge the parties' representation was the same, save that Mr Colin Thomann led for the Secretary of State.
The issue which we have to decide in this appeal depends on the effect of EU law and on how at the relevant time it applied in this jurisdiction. The law in question no longer applies since the withdrawal of the UK from the European Union, but it is more convenient to use the present tense when analysing it.
THE LEGAL FRAMEWORK
Articles 20 and 21 of the TFEU
Article 20 of the Treaty on the Functioning of the European Union (“the TFEU”) reads, so far as relevant:
“1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.
2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:
(a) the right to move and reside freely within the territory of the Member States;
(b)-(d) … …”
Article 21 (1) of the TFEU reads:
“Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.”
The Zambrano Jurisprudence
The issue in this appeal derives ultimately from the well-known decision of the Grand Chamber of the Court of Justice of the European Union (“the CJEU”) in Ruiz Zambrano v Office National de l'Emploi, case no. C34/09, [2012] QB 265, which was promulgated on 8 March 2011 1. That case concerned a family living in Belgium. The two (minor) children of the family were Belgian citizens, and thus also EU citizens by virtue of article 20 of the TFEU. The parents, however, only had Colombian nationality: in the language of the case-law they were “third country nationals”. The proceedings arose out of a refusal to pay the father arrears of unemployment benefit on the basis that during the relevant period he had not been lawfully resident in Belgium or, therefore, working lawfully. It was his case that he had a derivative right to reside in Belgium, and to work, by virtue of his children's rights under articles 20 and 21.
The CJEU upheld the father's case. Its reasoning appears at paras. 40–45 of its judgment, which read:
“40. Article 20 of the FEU Treaty confers the status of citizen of the European Union on every person holding the nationality of a member state: see, inter alia, D'Hoop v Office national de l'emploi (Case C-224/98) [2004] ICR 137, para 27, and Garcia Avello v Belgian State (Case C-148/02) [2003] ECR I-11613, para 21. Since Mr Ruiz Zambrano's second and third children possess Belgian nationality, the conditions for the acquisition of which it is for the member state in question to lay down (see, to that effect, inter alia, Rottmann v Freistaat Bayern (Case C-135/08) [2010] QB 761, para 39), they undeniably enjoy that status: see, to that effect, the Garcia Avello case, para 21, and the Chen case, [2005] QB 325, para 20.
41. As the court has stated several times, citizenship of the European Union is intended to be the fundamental status of nationals of the member states: see, inter alia, Grzelczyk v Centre public d'aide sociale d'Ottignies-Louvain-la-Neuve (Case C-184/99) [2002] ICR 566, para 31; Baumbast v Secretary of State for the Home Department (Case C-413/99, [2003] ICR 1347, para 82; the Garcia Avello case, para 22; the Chen case, para 25; and the Rottmann case, para 43.
42. In those circumstances, article 20 of the FEU Treaty precludes national measures which have the effect of depriving citizens of the European Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the European Union: see, to that effect, the Rottmann case, para 42.
43. A refusal to grant a right of residence to a third country national with dependent minor children in the Member State where those children are nationals and reside, and also a refusal to grant such a person a work permit, has such an effect.
44. It must be assumed that such a refusal would lead to a situation where those children, citizens of the Union, would have to leave the territory of the Union in order to accompany their parents. Similarly, if a work permit were not granted to such a person, he would risk not having sufficient resources to provide for himself and his family, which would also result in the children, citizens of the Union, having to leave the territory of the Union. In those circumstances, those citizens of the Union would, as a result, be unable to exercise the substance of the rights conferred on them by virtue of their status as citizens of the Union.
45. Accordingly, the answer to the questions referred is that article 20 of [the TFEU] is to be interpreted as meaning that it precludes a Member State from refusing a third country national upon whom his minor children, who are European Union citizens, are dependent, a right of residence in the Member State of residence and nationality of those children, and from refusing to grant a work permit to that third country national, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen.”
It will be seen that the essence of that reasoning, as it applied in the actual case, is that unless the father enjoyed the right to live in Belgium, and the right to work, he would have to leave the EU, and the children would in practice have to go with him, and that that would deprive them of the substance of their rights as EU citizens under articles 20 and 21. Mr Blundell referred us to the judgment of Lady Arden (with which the other members of the Court agreed) in Patel v Secretary of State for the Home Department [2019] UKSC 59, [2020] 1 WLR 228. At para. 22 she said:
“What lies at the heart of the Zambrano jurisprudence is the requirement that the Union citizen would be compelled to leave Union territory if the TCN [third country national], with whom the Union citizen has a relationship of dependency, is removed.”
He also referred us to para. 30, where Lady Arden observed that “[t]he test of compulsion is … a practical test to be applied to the actual facts and not to a theoretical set of facts”.
Zambrano represented a development of earlier case-law of the CJEU recognising that third country national parents of EU citizens might in certain circumstances enjoy rights to reside deriving from the rights of those citizens under EU law – so-called “derivative rights”. I should mention three examples which are not directly relevant but which are referred to in the case-law or other materials which I will have to consider:
(1) In Baumbast v Secretary of State for the Home Department C-413/99, [2003] ICR 1347, a German national child who was living in the UK was entitled under EU law (article 12 of EU Regulation 1612/68) to go to school here. The Court held that her mother, who was her sole carer and who was a Colombian national, was entitled to a derivative right of residence in the UK in order to facilitate the exercise of that right.
(2) In Chen v Secretary of State for the Home Department C-200/02, [2005] QB 325, a child with Irish nationality had the right to move to and reside in...
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