Olorunfunmilayo Oluwaseun Akinsanya & Anor, R (on the application of) v Secretary of State for the Home Department

The claimants sought judicial review of refusals to grant indefinite leave to remain under Appendix EU (the EU Settlement Scheme) as Zambrano carers. The primary legal question was whether, before the end of the transition period, a Zambrano right to reside was excluded not only by actual domestic leave but also where the carer had a real prospect of obtaining leave under a different immigration route (notably Appendix FM). The court held that the correct pre‑exit legal position was that the Zambrano right is excluded where the carer in fact had domestic leave; a mere realistic prospect of obtaining leave does not negate a Zambrano right. The judge found that the Home Office had misunderstood that point when drafting Guidance version 6, but that misunderstanding did not affect the wording of Appendix EU itself nor the refusals in the claimants’ cases. The court dismissed the substantive challenges (irrationality, breaches of the public sector equality duty and section 55, and legitimate expectation) because the decisions refusing the applications were lawful and the policy choices were within the defendant’s margin of judgment.

This is a first instance judicial review of two refusals to grant indefinite leave to remain under Appendix EU (the EU Settlement Scheme) on Zambrano grounds. The claimants were sole carers of British citizen children and at relevant times held limited leave under Appendix FM. They applied for settled status under Appendix EU and were refused because Appendix EU excluded those who already held leave under another route.

The application framed these principal issues:

• Did the Home Office misunderstand the scope of the Zambrano right by treating a mere realistic prospect of obtaining leave under another route as excluding Zambrano status?
• If there was such a misunderstanding, did it infect Appendix EU or the refusals and render them unlawful?
• Were the refusals irrational, in breach of the public sector equality duty (Equality Act 2010 s149), or in breach of the duty to safeguard children (Borders, Citizenship and Immigration Act 2009 s55)?
• Did the claimant 2 have a legitimate expectation or accrued right under the revoked EEA Regulations or the pre‑exit statements?

The judge analysed the Zambrano jurisprudence (including Ruiz Zambrano, Sanneh, and Akinsanya) and concluded that EU law looks to whether the carer actually had a domestic right to reside: the Zambrano derivative right is excluded where the carer in fact had leave to remain; it is not defeated merely because the carer might a realistic prospect of obtaining leave if they applied. The court held that Sanneh and the CJEU authorities require an enquiry focused on whether the British citizen would in practice be compelled to leave, and that this focus aligns with treating actual domestic leave as the dispositive exclusion.

The judge found that the Home Office’s version 6 Guidance misconceived that point (by treating a realistic prospect as excluding Zambrano status) and so the Guidance was tainted by misunderstanding. Crucially, however, Appendix EU’s drafted definition already reflected the correct position and the refusals in the claimants’ cases relied on the Appendix EU exclusion of those who actually had leave under another provision. Because both claimants actually had Appendix FM leave at the specified date, the Home Office misunderstanding of the ‘real prospect’ issue did not affect their outcomes. The court further rejected arguments of irrationality, failure under s149 and s55, and legitimate expectation, holding the policy distinctions rational and within the Home Secretary’s margin of judgement. The claim was dismissed.

The claim is dismissed. The court found that (i) the correct pre‑exit legal position is that a Zambrano right is excluded where the carer in fact had domestic leave to enter or remain, and a mere realistic prospect of obtaining domestic leave does not negate a Zambrano right; (ii) the Home Office misapplied that point in Guidance version 6, but that misunderstanding did not affect the wording of Appendix EU nor the refusal decisions concerning these claimants (both of whom had Appendix FM leave); and (iii) the challenges based on irrationality, the public sector equality duty and the duty under section 55, and on legitimate expectation, failed because the policy choices were within the defendant’s margin of judgement and the requisite public law duties had been engaged with appropriately.