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This post is to provide updated information regarding the Akinsanya EUSS Zambrano legal challenge, and also to provide a template of grounds of challenge for these types of cases (see bottom of update).

 

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.

 

The background of the case has been discussed in detail in previous updates under the NEWS section of the HCLC site. Rights of Women also have a very comprehensive legal update available from February 2023, which can be accessed here: https://rightsofwomen.org.uk/legal-update-for-non-eu-national-parents-primary-carers-of-british-children/

 

Background in brief:

 

After the Court of Appeal decision on 25 January 2022, the Home Office agreed to reconsider their rules and policy regarding EUSS Zambrano. They published the result of that review on 13 June 2022. Unfortunately, even after taking time to reconsider the government position, the Secretary of State decided not to change the rules or policy at all.

 

In July 2022, the Home Office again refused Ms Akinsanya’s application for Settled Status.

 

 

Change to Zambrano rules on 9 November 2022 (Paragraph (a)(iv) of the definition of a person with a Zambrano right to reside in Appendix EU)

 

A few months after the announcement of 13 June 2022, the Home Office changed the rules of the EU Settlement Scheme as they relate to Zambrano carers.

The new rules make clear that anyone relying on the Zambrano route must have met the eligibility criteria on 31 December 2020. In addition, the Home Office has made it clear with this rule change that people cannot rely on a period in the past as counting towards five years of settled status if they did not continue to meet the eligibility criteria on 31 December 2020.

 

Change to Zambrano policy guidance on 14 December 2022

 

On 14 December 2022, the Home Office 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.

Home Office case workers must now consider whether even those applicants who had no other form of leave to remain at the date of their application or at the specified date, could in theory have previously made a successful application under Appendix FM at an earlier date (but didn’t). This cohort are also now potentially ineligible for leave under the EUSS derivative rights routes, Zambrano, Chen and Teixeira.

 

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.

We believe that these changes to the policy are unlawful, as they do not reflect the criteria set out in the Immigration Rules.

 

New judicial review challenge

 

After the second refusal of Ms Akinsanya’s EUSS application in July 2022, the case went back to the High Court, where there were previously unargued grounds for which Ms Akinsanya still had permission.

 

In addition to those unargued grounds, new and additional grounds of challenge have also arisen in Ms Akinsay’s case following the published review of 13 June 2022, the second refusal of her application in July 2022 and the most recent changes to rules and guidance, as mentioned above.

 

In order to challenge the Home Office on these new grounds, it was ordered by the High Court that a new claim for judicial review should be issued including any additional grounds of challenge, and any amendments to the original unargued grounds from Ms Akinsanya’s first judicial review.

 

Ms Akinsanya is currently at the pre-action stage of this new challenge. Updates will be provided here.

 

FAQs

 

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 likely be refused by the Home Office if:

• You are a person who had limited leave to remain (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 by the Home Office 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

 

What if I have not yet made an application for EUSS leave?

 

If you were the primary carer of a British citizen before the 30 December 2020, it may still be worth making an EUSS application despite the recent changes to the rules and guidance which may currently make you ineligible. We continue to challenge the changes to the rules and guidance, and if these legal challenges are successful, the situation for applicants may change.

 

Late applications:

 

The Home Office extended the deadline for applications until 25 July 2022 for those who were eligible and had not yet applied. You can still apply after that date, however, you will need to provide ‘reasonable grounds’ as to why your application was not submitted before the deadline. This means you will need to provide a reason/reasons for your application being late. The Home Office will then decide whether they will allow your late application based on the reasons you have provided.

 

If you have not yet made an application and you think you may be eligible you should seek legal advice as soon as possible.

 

What to do if my application is refused:

 

If your application is refused, there are options available to challenge a refusal. These include administrative review and appeal. It is important to seek legal advice regarding which of these options is best suited to your case and also to assist you in understanding whether a challenge has a chance of success. 

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 lodging an appeal ‘in time’ to protect your position while you continue to try to get legal advice.

• an application for administrative review 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 the First-tier Tribunal (Immigration & Asylum Chamber) costs £140 and must be made within 14 days of receiving the decision. Information about how to appeal will be included in your decision letter. 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.

See template of grounds of challenge below. 

 

TEMPLATE OF GROUNDS

 

 

1. SSHD acted irrationally and/or on the basis of a misdirection of law by basing her Decision to Maintain Paragraph (a)(iv) of the definition of a person with a Zambrano right to reside in Appendix EU on the revocation of the EEA Regulation.
2. When making the decision to maintain paragraph (a)(iv) SSHD acted irrationally and/or misdirected herself in law in treating Zambrano cases fundamentally differently from Chen/Teixeira cases.
3. The decision to maintain paragraph (a)(iv) is in breach of the public sector equality duty in section 149 Equality Act 2010 as regards the need to eliminate discrimination on the grounds of sex.
4. The decision to maintain paragraph (a)(iv) is in breach of the public sector equality duty in section 149 Equality Act 2010 as regards the need to eliminate discrimination on the grounds of race and colour.
5. The decision to maintain paragraph (a)(iv) is in breach of SSHD’s duty under section 55 of the Borders, Citizenship and Immigration Act 2009 to ensure that her consideration of whether to maintain the definition of ‘a person with a Zambrano right to reside’ unchanged was discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom.

 

Potential grounds of challenge to the revised December 2022 Guidance:

 

6. Challenge to the lawfulness of the revised Guidance, on the basis that it is inconsistent with the immigration rules and unlawfully mis-states the relevant tests under the rules. 

The definition of ‘a person with a Zambrano right to reside’ in Appendix EU incorporates a self-contained and exhaustive list of categories of persons who are excluded from meeting the definition on account of their immigration status.  The Guidance, however, instructs caseworkers to add an additional exclusion not stated in the rules, i.e. to refuse leave to someone who meets both the conditions above but “is likely to qualify for Appendix FM leave” because “there is a realistic prospect that they would do so (or would have done so).” 

 

7. The Guidance is contrary to the decision of the Administrative Court in Akinsanya at paragraphs 62-63 to the effect that sections of the previous Guidance which similarly excluded those who did not have Appendix FM leave but could have applied for it were unlawful. The High Court’s findings on this point were not overturned on appeal.

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