HCLC News

Law Centre success in challenging unfair Government immigration restrictions

                                                                        

High Court rules that Home Office EUSS policy excluding Zambrano Carers with limited leave is unlawful

 

Hackney Community Law Centre (HCLC) has been involved in a successful High Court challenge to the government’s EU Settled Status rules for Zambrano Carers which exclude Zambrano carers with limited leave to remain.

 

A ‘Zambrano’ carer is a non-EEA parent of British children who would otherwise be compelled to leave the UK.

 

When the Secretary of State decided to open up the EU Settlement Scheme to Zambrano carers, a group of individuals with no route to settlement in the UK despite being the parents of British children, it offered an opportunity for stability to many families. However, Zambrano carers with limited leave to remain were excluded.

 

This limited form of leave is precarious and the applications are expensive and complex, amounting to thousands of pounds every two and a half years.

 

Common issues on this route include eviction, rent arrears, debt, dependency on abusive or exploitative relationships, inadequate and overcrowded housing, and essential needs going unmet, including parents and children having to skip meals.

 

An application made out of time, even by a month, can mean that an applicant is placed back at the start of the 10-year route.

 

The evidence provided by various charities and non-governmental organisations indicated that the restrictive Rules disproportionately affected single mothers of British children. The claimant’s lawyers argued that the rules were unlawful and discriminatory.

 

HCLC has thanked various local and human rights organisations for providing evidence of the human effects of the rules.

 

On 9 June 2021, the High Court handed down judgment in the case of R(Akinsanya) v Secretary of State for the Home Department, a challenge to the Home Office’s policy excluding ‘Zambrano’ carers who have limited leave to remain from the EU Settlement Scheme.

 

The Court agreed with the claimant that the Secretary of State had misdirected herself in interpreting Regulation 16 of the EEA Regs 2016, which exempts only those with indefinite leave to remain from also holding the derivative Zambrano right. The exclusion of those holding a limited form of leave within the definition of a ‘Zambrano right to reside’ in Appendix EU and relevant Home Office Guidance was therefore unlawful.

 

Ms Akinsanya, the claimant, is a single mother of four young children, the eldest of whom is British.

 

She had collapsed at work due to high blood pressure while heavily pregnant in 2019 and could no longer work enough to support herself and her children. As a Zambrano carer she was prohibited from recourse to public funds.

 

Destitute, she made an application for limited leave to remain under Appendix FM (which would allow her to access benefits) just before the Home Office amended Appendix EU of the Immigration Rules, extending the Settlement Scheme to Zambrano carers.

 

The claimant was granted limited leave to remain under Appendix FM in July 2019, and subsequently refused EU Settled Status in September 2020 on the basis that she now had another form of leave and was therefore excluded from the scheme.

 

The High Court have found that the Secretary of States interpretation of the scope of the Zambrano jurisprudence and the EEA Regulations was mistaken, offering hope to potentially thousands of applicants - a cohort comprised overwhelmingly of single mothers of British children. Divested of the right to apply for Settled Status, these mothers would be left to pursue settlement on a 10-year route, requiring them to re-apply every 30 months for themselves and any non-British children.

 

In an indication of the number of people affected by the restrictive EUSS Rules, the judgement states: ‘It seems likely that the change of mind of May 2019 will have led to a not insubstantial number of Zambrano applications being rejected. I have been informed that between 28 August 2018 and 31 March 2021 3,840 Zambrano applications were received, and of these 3,300 were concluded.

 

Of these, 1,160 were granted status, and 2,090 were refused. A straight-line apportionment would suggest that around 1,550 refusals were issued between May 2019 and March 2021. It would seem likely that many of those refusals would have been based on the applicant's existing limited leave to remain.’[71]

 

And this does not take into account the number of individuals who never made an application due to their unlawful exclusion in the Rules and Guidance.

 

In response to the judgement, Ms Akinsanya, the claimant, said: “it’s a wonderful thing when things can change for many people because of just one person. By the grace of God I hope that because of me and my case, the Home Office will change their policy and good things can happen for many other women like me.”

 

Beya Rivers, instructing solicitor at HCLC, commented: “This judgement gives hope to thousands of British children living in limbo that their parents and non-British siblings may be able to apply for settlement.

 

“The Secretary of State now has the opportunity to do the right thing by this group of predominantly single mothers and their children by changing the Immigration Rules to reflect the Court’s judgement.”

 

Ian Rathbone, Chair of HCLC, added: “We hope that the Government will take account of this and be merciful and flexible with people who are on the bottom line of poverty. This involves children born in this country who have every right to be here.

 

“There are many thousands of children in this country like this who should not be  living precariously on the edge of poverty and other forms of disadvantage.”

 

Hackney Community Law Centre (HCLC), instructed Simon Cox and Mike Spencer of Doughty Street, to launch a legal challenge against the Secretary of State for the Home Department on behalf of a claimant who had recently been refused EU Settled status.