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

A Zambrano right to reside is excluded by an actual grant of leave to remain under another immigration route. A realistic prospect of obtaining such leave does not itself exclude the right. Practical assessment concerns whether the British citizen would be compelled to leave, not whether the carer would probably be removed.

A misunderstanding affecting later guidance did not invalidate decisions based on the Immigration Rules definition, which lawfully excluded persons who already held other leave. Distinguishing Appendix EU from Appendix FM was rational and not unlawfully discriminatory. The public sector equality duty and the duty to safeguard children’s welfare required proper engagement with relevant matters, but did not require the grant of settled status under Appendix EU.

The claimants, Nigerian and Ghanaian nationals, were sole carers of British citizen children. Each held limited leave to remain under Appendix FM when the Withdrawal Agreement took effect and when applying for indefinite leave under Appendix EU as a Zambrano carer.

The Secretary of State refused both applications because the claimants had held leave under another route. The challenges alleged misunderstanding of EU law, irrationality, unlawful discrimination, breach of the public sector equality duty and section 55 duties, legitimate expectation, retrospectivity, and breaches of Article 8. The central issues were whether a realistic prospect of obtaining alternative leave excluded a Zambrano right and whether that approach affected the claimants’ decisions.

1. The claims were dismissed. Permission was granted on the principal grounds, but those grounds failed. Permission was refused on several subsidiary grounds advanced by the second claimant.
2. The authorities established that a Zambrano right is excluded where the carer has actually been granted leave to remain under domestic law. A realistic prospect of obtaining leave, without an actual grant, does not have that effect. The practical inquiry concerns whether the British citizen would in fact be compelled to leave the United Kingdom, the European Economic Area or Switzerland if the carer left. It does not concern whether the carer would probably be removed. The Court of Appeal’s approach in Sanneh was incompatible with the Secretary of State’s argument, while Velaj concerned the factual position of the British citizen and did not support that argument.
3. The misunderstanding affected version 6 of the Guidance and the application of paragraph (a)(iii) of the Annex 1 definition. It did not affect paragraph (a)(iv), which correctly excluded persons who already had leave under another provision. Both claimants held Appendix FM leave when the relevant applications were made and when the Withdrawal Agreement took effect. Their decisions were therefore unaffected. The statutory no-substantial-difference test in section 31 of the Senior Courts Act 1981 would independently have prevented relief.
4. The distinction between Appendix EU and Appendix FM was rationally open to the Secretary of State. The routes served different groups and had different advantages and disadvantages. The EUSS context justified a wide margin of judgment. The Equality Impact Assessment and accompanying material showed sufficiently rigorous engagement with equality issues. Section 149 of the Equality Act 2010 required due regard, not a particular outcome.
5. The children’s welfare did not require settled status under Appendix EU because Appendix FM protected their family life. The second claimant had no accrued right or legitimate expectation to indefinite leave under Appendix EU. The EEA Regulations created derivative residence rights, not leave or a route to settlement.

First-instance judicial review proceedings. The judgment itself records earlier Court of Appeal proceedings in the same litigation, including R (Akinsanya) v Secretary of State for the Home Department [2022] EWCA Civ 37, which led to reconsideration of the first claimant’s application. The present claims were dismissed.