Olorunfunmilayo Oluwaseun Akinsanya v Secretary of State for the Home Department

A third-country national carer has no Zambrano right while domestic or other EU law supplies the residence, work or assistance necessary to prevent the dependent EU citizen from being compelled to leave EU territory. The right arises if that protection is lost and the practical compulsion condition is met.

Domestic legislation may nevertheless confer broader rights than EU law requires. There is no general presumption against such additional protection. Clear implementing legislation must be given its natural meaning. Under regulation 16 of the Immigration (European Economic Area) Regulations 2016, limited leave did not make a carer an exempt person. Such a carer could therefore hold a derivative right concurrently with limited leave.

The claimant, a Nigerian national and sole carer of a British citizen child, formerly held a derivative residence card as a Zambrano carer. She later obtained limited leave to remain and then applied for indefinite leave under the EU Settlement Scheme. The Secretary of State refused the application because the scheme's definition excluded a person holding leave granted outside that scheme.

Mostyn J allowed the claimant's judicial review, quashed the refusal and declared that the Secretary of State had misunderstood both EU law and regulation 16 of the Immigration (European Economic Area) Regulations 2016. The Secretary of State appealed. The questions were whether limited leave prevented a Zambrano right arising under EU law and whether regulation 16 nevertheless conferred a concurrent domestic derivative right.

1. Appeal dismissed in substance. The High Court's order quashing the refusal remained in force. The declaration was varied to state that the Secretary of State had erred in her understanding of regulation 16 when framing the EU Settlement Scheme definition.
2. The EU-law ground succeeded. Zambrano rights are exceptional and contingent. They arise to prevent a dependent EU citizen from being compelled in practice to leave EU territory. Decisions including Iida and NA showed that the right does not arise while domestic law or another source of EU law supplies the necessary residence right. The practical possibility that the domestic right might later be lost does not alter that conclusion. If it is lost and removal would compel the EU citizen to leave, the Zambrano right arises: it remains, in the court's phrase, “waiting in the wings”.
3. Sanneh did not establish a contrary rule. It concerned a carer who had no domestic residence right and rejected the contention that a Zambrano right arose only when removal became imminent. Its reasoning did not address a carer already possessing limited leave.
4. The domestic-law ground failed. Regulation 16(7)(c)(iv) of the Immigration (European Economic Area) Regulations 2016 expressly made a person with indefinite leave an exempt person. Its clear language did not include a person holding only limited leave. Subject to the remaining statutory criteria, such a person could therefore acquire a derivative right concurrently with that leave.
5. There is no general presumption that domestic legislation implementing EU law cannot go beyond the EU minimum. Whether the legislature intended additional protection is part of the ordinary contextual exercise of construction. Here, any broad intention merely to implement Zambrano could not justify adding words which would change the clear scope and meaning of regulation 16.

Bean and Andrews LJJ agreed with Underhill LJ.

1. Court of Appeal (Civil Division): By [2022] EWCA Civ 37 , dismissed the appeal in substance, preserved the quashing order and substituted a more precisely framed declaration concerning regulation 16 of the Immigration (European Economic Area) Regulations 2016.
2. High Court, Administrative Court: Mostyn J allowed the judicial review, quashed the Secretary of State's refusal and declared that the EU Settlement Scheme definition rested on errors concerning EU law and regulation 16. No neutral citation is stated in the judgment.