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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Akinsanya, R (On the Application Of) v Secretary of State for the Home Department (Rev 3)  EWHC 1535 (Admin) (09 June 2021)
Cite as:  Imm AR 1311,  WLR(D) 335,  1 WLR 5454,  EWHC 1535 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen on the application of
Olorunfunmilayo Oluwaseun Akinsanya
|- and –
|Secretary of State for the Home Department
Colin Thomann and Julia Smyth (instructed by GLD) for the Defendant
Hearing date: 20 May 2021
Crown Copyright ©
Mr Justice Mostyn:
i) The Zambrano jurisprudence; and
ii) Regulation 16 of the Immigration (European Economic Area) Regulations 2016 (SI 2016/1052) ("Regulation 16").
i) An order quashing the decision of 29 September 2020;
ii) A declaration that the Secretary of State erred in law when framing in Annex 1 to Appendix EU to the Immigration Rules the definition of a "person with a Zambrano right to reside" under paragraph (b) as "a person …. without leave to enter or remain in the UK, unless this was granted under this Appendix" ("para (b)")*;
iii) A declaration that the Guidance issued by the Secretary of State "Free Movement Rights: derivative rights of residence" (version 5.0 of 2 May 2019) and "EU Settlement Scheme: person with a Zambrano right to reside" (version 4.0 of 27 April 2021) are legally erroneous insofar as they state that a Zambrano right to reside is not available to a person if he/she has limited leave to enter or remain in the UK; and
iv) An order fixing a further hearing 21 days after the date of this judgment for the court to consider any further quashing relief.
* To be exact, para (b) is presented in Annex 1 thus:
person with a Zambrano right to reside
a person who has satisfied the Secretary of State, including (where applicable) by the required evidence of family relationship, that, by the specified date, they are (and for the relevant period have been), or (as the case may be) for the relevant period in which they rely on having been a person with a Zambrano right to reside (before they then became a person who had a derivative or Zambrano right to reside) they were:
(b) without leave to enter or remain in the UK, unless this was granted under this Appendix
The scope of the Zambrano jurisprudence
"The applicant and his wife cannot pursue any employment, but no expulsion measure can be taken against them because their application for legalising their situation is still under consideration."
"Whether the provisions of the Treaty on the Functioning of the European Union on European Union citizenship are to be interpreted as meaning that they confer on a relative in the ascending line who is a third country national, on whom his minor children, who are European Union citizens, are dependent, a right of residence in the member state of which they are nationals and in which they reside, and also exempt him from having to obtain a work permit in that member state."
"27. In the Zambrano case, there was no question as to the effect of refusing a right of residence to the parents: both were third-country nationals with no other lawful basis to stay, and so their children would be obliged to accompany them if a right of residence were not granted.
28. It has, in other words, been a fundamental condition for the application of the Zambrano principle from its inception that there be compulsion to leave the EU if the right of residence is not granted. And, in practice, the CJEU's jurisprudence has imposed a high threshold for compulsion, to be demonstrated clearly."
I do not think this is correct. As I have explained above, the family could not be deported because of the non-refoulement order and Mr Zambrano holding a limited, renewable residence permit and being entitled to a limited work permit. So there was no question of Mr and Mrs Zambrano being compelled to leave if they were not granted this novel right. On the contrary, the non-refoulement order, bolstered by the residence and work permits granted to Mr Zambrano, meant that the family was lawfully present in Belgium and could not be compelled to leave.
"42. In those circumstances, article 20 of the FEU Treaty precludes national measures which have the effect of depriving citizens of the European Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the European Union: see, to that effect, the Rottmann case, para 42.
43. A refusal to grant a right of residence to a third country national with dependent minor children in the member state where those children are nationals and reside, and also a refusal to grant such a person a work permit, has such an effect.
44. It must be assumed that such a refusal would lead to a situation where those children, citizens of the European Union, would have to leave the territory of the European Union in order to accompany their parents. Similarly, if a work permit were not granted to such a person, he would risk not having sufficient resources to provide for himself and his family, which would also result in the children, citizens of the European Union, having to leave the territory of the European Union. In those circumstances, those citizens of the European Union would, as a result, be unable to exercise the substance of the rights conferred on them by virtue of their status as citizens of the European Union.
45. Accordingly, the answer to the questions referred is that article 20 of the FEU Treaty is to be interpreted as meaning that it precludes a member state from refusing a third country national on whom his minor children, who are European Union citizens, are dependent, a right of residence in the member state of residence and nationality of those children, and from refusing to grant a work permit to that third country national, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen."
"2.1 These Regulations amend the Immigration (European Economic Area) Regulations 2006 ('the 2006 Regulations') which transpose into UK law Directive 2004/38/EC ('the Directive') on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States.
2.2 These Regulations give effect to the judgments delivered by the Court of Justice of the European Union ('the ECJ') in the cases of C-83/11 Rahman and C34/09 Ruiz Zambrano; and make a number of other amendments to address some transposition issues and to provide clarity and consistency in the 2006 Regulations."
The amending Regulation gave effect to the then recent Zambrano decision by introducing a new Regulation 15A into the 2006 Regulations. The amendments took effect on 8 November 2012.
"8. As a Zambrano right need only be conferred where a refusal to grant would force the primary carer to leave the UK (and thereby deprive the British citizen of their rights under EU law) certain "exempt persons" cannot acquire a Zambrano right of residence.
9. A person is an "exempt person" if they are a person:
a. who has a right to reside in the United Kingdom as a result of any other provision of these Regulations;
b. who has a right of abode in the United Kingdom by virtue of section 2 of the 1971 Act;
c. to whom section 8 of the 1971 Act, or any order made under subsection (2) of that provision, applies; or
d. who has indefinite leave to enter or remain in the United Kingdom.
10. Where someone has limited leave (and so is not listed as one of the exempt categories above) and can demonstrate they meet all other requirements of Regulation 15A, then they can acquire a derivative right of residence."
"29. In the present case, it is not manifestly apparent that the issue which has prompted the questions referred is purely hypothetical.
30. After all, it is not inconceivable that the court's answers to the various questions put to it will determine whether the applicant is eligible for certain social security benefits and special non-contributory benefits which she is currently denied because of the restriction of the rights conferred by a right of residence based on article 8 of the Human Rights Convention : see the written observations lodged by the applicant, para 7. A right of residence based directly on European Union ("EU") law would at the very least be such as to afford the applicant an increased level of legal certainty: see the written observations lodged by Aire Centre, para 3."
The court plainly accepted that the questions were not hypothetical. The existence of the leave granted under the Human Rights Act 1998, which I assume was limited, did not have the effect of knocking out the Zambrano claim. Again, this clearly signifies that the CJEU does not regard the existence of a current limited leave to remain as extinguishing the claim for a Zambrano derivative right of residence.
"Article 20 FEU must be interpreted as meaning that it does not confer a right of residence in the host member state either on a minor Union citizen, who has resided since birth in that member state but is not a national of that state, or on a parent who is a third-county national and who has sole custody of that minor, where they qualify for a right of residence in that member state under a provision of secondary EU law."
"There is, contrary to the Claimant's submission, no basis for confining this observation to the situation where the person concerned already qualifies for a right of residence under the EU secondary law, as opposed to national law. The source of alternative rights is not material: the point is that there is no compulsion to leave if there is an alternative means of lawful residence."
"166. This appeal raises questions about the full implications of Ruiz Zambrano v Office national de l'emploi (Case C-34/09)  QB 265 as a matter of EU law. The Secretary of State submits that they are extremely limited. Indeed, on his analysis here is no right to reside as such until the point where removal of the carer is imminent; at that moment, but not before, the carer can claim the benefit of a right - more accurately described as an immunity - which provides the carer with a defence to any attempt to remove her from the country. The argument is that until steps to remove her are taken, the carer's presence in the country is de facto tolerated and therefore her charge, the EU citizen from whose right to reside the carer's right is derived, is not in jeopardy of being removed. The child is not at risk of being deprived of "the genuine enjoyment of the substance of the rights" conferred by virtue of the child's status as an EU citizen, to use the language in para 42 of Zambrano . Accordingly, if no steps are taken against the carer (and assuming there is no issue of the carer being forced to leave for financial reasons) no Zambrano status ever arises and therefore there can be no question of any benefits being acquired by virtue of that status. Any benefits to which the carer is entitled must be derived from some other legal source.
167. I wholly reject this analysis of the nature of the Zambrano right. In my view, it is barely coherent. The logic appears to be that although the state at all times has the right to take action to remove the third-country national, in practical terms it is necessarily and always meaningless. At the very same moment as the state takes steps to exercise that right, a countervailing right magically springs into being which enables the carer to claim to be immune from the process. Presumably on this analysis if the state then agrees not to take removal action, the need to invoke the Zambrano principle disappears and the carer returns to the status of someone whose presence is simply tolerated but who has no right as such to remain in the country.
168. I cannot accept that this would be a proper implementation of the EU right. The right lawfully to remain and work in the UK can only sensibly mean that no action can be taken by the state to defeat those rights. Of course, the right to remain need only be asserted when the state seeks to interfere with it; that is so with all rights which confer freedom from state interference. It does not follow that the right arises only at the point when it is being asserted. At all times whilst the Zambrano conditions are met, the carer has the right not to have action taken to remove her from the country if the effect would be to deprive the child of his or her right, as a citizen of the EU, to remain within the EU.
169. The Secretary of State's submission is made all the more bizarre given that someone not lawfully present in the UK is under a duty to leave, and indeed is committing a criminal offence by remaining: see section 24 of the Immigration Act 1971. As I understand the response to this point of Mr Coppel QC, counsel for the Secretary of State, it is that in practice no proceedings are ever instituted against those illegally present, and if they were there would be an immunity from the criminal process. But to be effective the immunity must have the effect that at no time when the carer has been performing her role as a Zambrano carer has she been acting illegally by remaining in the country. The carer's presence in the circumstances must be lawful, not merely tolerated, and that can only be on the premise that there is at all times a right to stay.
170. The right to reside conferred by EU law takes effect automatically in domestic law. It follows that where under domestic law an entitlement to social benefits depends on lawful residence, or habitual residence, a Zambrano carer will qualify for them. …"
i) a Zambrano right is a substantive right, and not merely a procedural defence to deportation;
ii) a Zambrano right confers "at all times" a right to stay, which I take to mean, at a minimum, a right to stay while the children are in their minority; and
iii) where under domestic law an entitlement to social benefits depends on lawful or habitual residence, then a Zambrano carer will qualify for them.
"The CJEU explained that in very specific situations a TCN (third country national) may have a right of residence if the Union citizen would otherwise be obliged to leave Union territory. Those limits are very important in considering these appeals because Charter rights are not engaged unless an EU law right is triggered. As stated, the TCN's derived right of residence is only given in order that the Union citizen's rights should be effective. That would be the limit of the entitlement under EU law of the TCN to reside in the Union."
This, he argues, points up the sui generis nature of this creation of EU law. That is true, but so what? I do not doubt that this creation by the CJEU is unique. Its uniqueness does not tell me anything about the question I have to decide, namely whether it is automatically extinguished if there is, at the time that it is claimed, a concurrent limited leave to remain.
"In Patel's case, the claimant has already failed in an article 8 claim. Had he succeeded, the result would have been a grant of leave to remain which would obviate the need for leave under the Ruiz Zambrano principle."
I do not agree with this submission, for the reasons I have set out above. It is not consistent with the governing EU jurisprudence.
"A Zambrano right to reside is only available to a person who has no other means to remain lawfully in the UK as the primary carer of a dependent British citizen, or as a dependant of that primary carer.
As set out in sub-paragraph (b) of the definition of a 'person with a Zambrano right to reside' in Annex 1 to Appendix EU, an applicant cannot meet that definition if they have (or, as the case may be, for the relevant period had) leave to enter or remain in the UK, unless this was granted under Appendix EU.
An applicant cannot therefore meet that definition if they have (or, as the case may be, for the relevant period had) leave to enter or remain granted under another part of the Immigration Rules (such as Appendix FM) or on a discretionary basis outside the Rules.
In the case of Patel v SSHD  EWCA Civ 2028 (13 December 2017), the Court of Appeal noted that a person with leave to remain under domestic law cannot benefit from a derivative right to reside on the basis of Zambrano. The Court of Appeal also noted that Zambrano is a (sic) not a back-door route to residence for those who have a British citizen child without having or acquiring leave to remain.
In its judgment in that case (Patel v SSHD  UKSC 59, 16 December 2019), the Supreme Court was not required to rule on the implications of leave to remain under domestic law for the scope to benefit from a derivative right to reside on the basis of Zambrano, but it confirmed (at paragraph 22 of the judgment) that the test to be met to benefit from that right is one of compulsion: "What lies at the heart of the Zambrano jurisprudence is the requirement that the Union citizen would be compelled to leave Union territory if the third country national, with whom the Union citizen has a relationship of dependency, is removed."
"Those who marry a British citizen and have children, without having (or acquiring) leave to remain, do so at the risk that they may be compelled to leave the country, facing the real quandary that arises for these families. The Ruiz Zambrano principle cannot be regarded as a back-door route to residence by such non-EU citizen parents."
The Zambrano principle is simple and clear. An EU citizen, who happens to be a small child, is entitled to enjoy the full benefits of EU citizenship, of which the principal one is living in EU territory. If her primary carer were to be expelled from EU territory, and if in the real world the EU citizen would have to accompany the carer, then the EU citizen is denied the benefits of her citizenship. Therefore, her carer has to be granted residence in the relevant EU state. True, that grant of residence is derivative and is not obtained by passing through the front door. Therefore, it is a route to residence via the back door, although to describe it in such pejorative terms perhaps risks missing the true point.
"However, if the applicant has leave to enter or remain in the UK which is not leave granted under Appendix EU and which, at the point of decision, has less than 28 days until its expiration date, then, though you will be refusing the application, you must still move on to consider whether they meet other relevant eligibility criteria set out below for leave under the scheme as a 'person with a Zambrano right to reside' and reflect that consideration in the decision letter refusing the application."
If I understand this correctly, it is saying that if the applicant has limited leave to remain expiring more than 28 days after the decision date, then the application will be peremptorily refused. If there are fewer than 28 days until expiration of the leave then the decision-maker will refer to stages 1 to 3 of the eligibility criteria on page 17, but nonetheless will refuse the application. How this gives effect to the principle in Zambrano is quite beyond me. I think that the answer to my bafflement would be that the applicant would not be prevented from making a Zambrano application immediately following the expiration of her limited leave to remain. This does, however, point up just how arbitrary the system is.
"Derivative right of residence
15A (1) A person ("P") who is not an exempt person and who satisfies the criteria in paragraph (2), (3), (4), (4A) or (5) of this Regulation is entitled to a derivative right to reside in the United Kingdom for as long as P satisfies the relevant criteria.
(4A) P satisfies the criteria in this paragraph if -
(a) P is the primary carer of a British citizen ("the relevant British citizen");
(b) the relevant British citizen is residing in the United Kingdom; and
(c) the relevant British citizen would be unable to reside in the UK or in another EEA State if P were required to leave.
(6) For the purpose of this Regulation -
(c) "an exempt person" is a person
(iv) who has indefinite leave to enter or remain in the United Kingdom."
'"indefinite leave" , "immigration laws" and "immigration rules" have the meanings given in section 33(1) of the Immigration Act 1971'
"(7A) Leave to enter, or remain in, the United Kingdom under the 1971 Act which has been granted by virtue of Appendix EU to the immigration rules is not to be treated as leave for the purposes of paragraph (6)(b) or (7)(c)(iv)"
"A derivative right to reside is only available to an applicant who has no other means to remain lawfully in the UK as the primary carer of a dependent British citizen, or a dependent of that primary carer.
Where a person wishes to remain in the UK on the basis of family life with a British citizen, they should first make an application for leave to remain under Appendix FM to the Immigration Rules, not for a derivative residence card on the basis of Zambrano.
This means that a Zambrano application must be refused if the applicant:
- has never made an application under Appendix FM to the Immigration Rules or any other Article 8 ECHR claim, where that avenue is available
- has been refused under Appendix FM or Article 8 ECHR but their circumstances have changed since the decision was made – for example, the applicant applied on the basis of their relationship with a British spouse, but the couple now have a British child."
(7) For the purpose of this Regulation -
(c) "an exempt person" is a person -
(iv) who has indefinite, or limited, leave to enter or remain in the United Kingdom.
"indefinite leave", "limited leave", "immigration laws" and "immigration rules" have the meanings given in section 33(1) of the Immigration Act 1971"
On any view, these changes would significantly reduce the size of the cohort entitled to make an application for a Zambrano derivative right of residence.
"Our duty in the matter is plain. We must not give the statutory words a wider meaning merely because on a narrower construction the words might leave a loophole for frauds against the revenue. If on the proper construction of the section that is the result it is not for judges to attempt to cure it. That is the business of Parliament. Our duty is to take the words as they stand and to give them their true construction, having regard to the language of the whole section, and, as far as relevant, of the whole Act, always preferring the natural meaning of the word involved, but none the less always giving the word its appropriate construction according to the context."
"Only a day or two ago, when counsel talked of the intention of a legislature, I was indiscreet enough to say I don't care what their intention was. I only want to know what the words mean."
Or as Justice Scalia put it:
"A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means. But while the good textualist is not a literalist, neither is he a nihilist. Words do have a limited range of meaning, and no interpretation that goes beyond that range is permissible."
"If the Secretary of State thinks that he has reasonable cause to believe any person to be of hostile origin or associations and that by reason thereof it is necessary to exercise control over him, he may make an order against that person directing that he be detained."
The additional implied words of course totally changed the meaning of the Regulation, so that the operative condition changed from being an objective fact to a subjective belief. The consequence was that a decision made under it could only be challenged on proof of bad faith by the Minister. In what was arguably the most powerful judicial dissent ever recorded in our case law Lord Atkin was having none of it. He held at 232:
"So far, I have sought to establish that the words in question are not ambiguous, that they have only one plain and natural meaning, that with that meaning the words have been used at common law and in numerous statutes, and that whenever they are used the courts have given them the meaning I suggest, have considered that they give rise to a justiciable issue, and that as to the "subjective" meaning now contended for by the Secretary of State it has never at any time occurred to the minds of counsel or judges that the words are even capable of meaning anything so fantastic."
In reaching that decision Lord Atkin was in truth doing no more than following Lord Mersey's celebrated dictum in Thompson v Goold & Co  AC 409 at 420:
"It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do."
- the Citizens' Rights (Restrictions of Rights of Entry and Residence) (EU Exit) Regulations 2020 (SI 2020/1210) Regulations 2, 3, 6, and Schedule 1; and
- the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020 (SI 2020/1309) Regulations 82 - 83, Schedule 3 paras 2 - 6 and Schedule 4 paras 2 - 4.
Simply stated, the effect of the savings is to allow people in the position of the claimant whose rights had vested prior to implementation day on 31 December 2020 to make their claim. However, it is, apparently, not straightforward to make amendments to these preserved provisions.
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
BEFORE THE HONOURABLE MR JUSTICE MOSTYN, handing down judgment remotely under the COVID-19 Protocol on 9 June 2021;
UPON hearing counsel for the Claimant and counsel for the Defendant;
IT IS DECLARED THAT:
1. The Secretary of State erred in law when providing, in Annex 1 to Appendix EU to the Statement of Changes to the Immigration Rules HC 395 as amended, that the definition of a "person with a Zambrano right to reside" includes paragraph (b) "a person …. without leave to enter or remain in the UK, unless this was granted under this Appendix."
2. The Guidance issued by the Secretary of State (1) "Free Movement Rights: derivative rights of residence" (version 5.0 of 2 May 2019) and (2) "EU Settlement Scheme: person with a Zambrano right to reside" (version 4.0 of 27 April 2021) is legally erroneous insofar as it states that a person who has limited leave to enter or remain in the UK cannot also have a derivative right to reside by virtue of regulation 16(1) of the Immigration (European Economic Area) Regulations 2016, by satisfying the criteria in regulation 16(5) of those Regulations.
IT IS ORDERED THAT:
3. The claim for judicial review is allowed.
4. The Defendant's decision of 29 September 2020 refusing the Claimant indefinite leave to remain under Appendix EU of the Immigration Rules is quashed.
5. The Claimant's application for further relief is adjourned to Thursday 17 June 2021 at 10:30, time estimate two hours, to be heard remotely via Microsoft Teams.
6. The Defendant shall pay the Claimant's costs, to be the subject of a detailed assessment on the standard basis if not agreed. This order for costs does not cover the aforesaid application for further relief. The costs of that application shall be determined following the hearing listed by paragraph 5 above.
7. The Defendant shall by 16:00 on Tuesday 6 July 2021 make a payment on account of £25,000 towards the Claimant's costs.
8. There shall be a detailed assessment of the Claimant's publicly funded costs.
9. The Defendant's application for permission to appeal is refused the court not being satisfied that the proposed appeal has a real prospect of success or that there is some other reason why an appeal should be heard.
10. Any Notice of Appeal must include an application to the Court of Appeal for expedition of the appeal and must be filed with the Court of Appeal and served by 16:00 on Monday 21 June 2021.
11. The Defendant's application for a stay of execution of the order in para 7 above for a payment on account of costs is refused.
Dated 9 June 2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
UPON the Court having given judgment on 9 June 2021 allowing the Claimant's claim for judicial review;
AND UPON the Court having adjourned the Claimant's application for further quashing relief and a hearing being listed to determine the application on 17 June 2021;
AND UPON the Claimant's application for an order for further relief as set out in her skeleton argument dated 16 June 2021;
AND UPON the Secretary of State confirming that:
a. The Secretary of State is to reconsider the relevant provisions of Appendix EU of the Immigration Rules ("Appendix EU");
b. The Secretary of State will not determine applications made under Appendix EU on the basis that the applicant is or was a person with a Zambrano right to reside ('Zambrano application') and is affected by the Court's judgment, until after she has completed her reconsideration of Appendix EU;
c. In paragraph (a)(v) of the definition of 'required date' in Annex 1 to Appendix EU the reference to "limited leave to enter or remain granted under another part of these Rules or outside the Immigration Rules which has not lapsed or been cancelled, curtailed or invalidated" includes leave to enter or remain granted under another part of these Rules or outside the Immigration Rules which is extended by operation of section 3C of the Immigration Act 1971;
d. To the extent that paragraph 34BB of the Immigration Rules applies to a Zambrano application, it will be disregarded where there is (i) an outstanding valid Zambrano application for leave to remain under Appendix EU and a valid application for leave to remain is subsequently made under Appendix FM based on the same circumstances; and (ii) an outstanding valid application for leave to remain under Appendix FM and a valid Zambrano application for leave to remain is subsequently made under Appendix EU based on the same circumstances as the Appendix FM application;
e. The Secretary of State intends to implement and publicise a policy under which, for a reasonable period of time which she will specify, but which will be for a period of not less than six weeks after publication of the outcome of her reconsideration referred to at a. above, Zambrano applications made on or after 1 July 2021 will be deemed, under the definition of 'required date' in Annex 1 to Appendix EU, to have reasonable grounds for the person's failure to make that application at the earlier date relevant under that definition;
f. In accordance with paragraph (c) of the definition of "EEA Regulations" in Annex 1 of Appendix EU, the question of whether an applicant is a person with a Zambrano right to reside as defined in Appendix EU in respect of a period on or after 1 July 2021 is to be determined on the basis of the Immigration (European Economic Area) Regulations 2016 as they had effect immediately before they were revoked, and, where the context requires it, on the basis that they had not been revoked;
g. Where a valid Zambrano application is made on or before 30 June 2021, the Secretary of State provides the applicant with a certificate of application confirming their entitlement to work, study and rent a place to live, until final determination of their Zambrano application;
h. The Secretary of State is considering the position in relation to the issue of similar certificates for applications made under Appendix EU on or after 1 July 2021, including in relation to Zambrano applications;
i. Before expiry of the period referred to in e., above, where persons are encountered by Immigration Enforcement on or after 1 July 2021 who may be eligible for leave as potential Zambrano applicants under Appendix EU in light of the judgment, such persons will be provided with written notice giving them an opportunity to make a valid application under Appendix EU, normally within 28 days of the date of the written notice.
IT IS ORDERED BY CONSENT THAT:
1. The Claimant's application for further relief as set out in her skeleton argument dated 16 June 2021 is withdrawn.
2. The hearing listed for 17 June 2021 is vacated.
3. The Claimant's application for further quashing relief is stayed pending determination of the Defendant's application to the Court of Appeal for permission to appeal and, if permission to appeal is granted, determination of that appeal.
4. There shall be no order as to costs, save that there be a detailed assessment of the Claimant's costs for the purposes of public funding.
5. This order and the order of 9 June 2021 shall be appended to the judgment dated 9 June 2021 which shall be republished on the Bailii website.
Dated this 17th day of June 2021
Note 1 Section 33(1) of the Immigration Act 1971 states: “limited leave” and “indefinite leave” means respectively leave under this Act to enter or remain in the United Kingdom which is, and one which is not, limited as to duration. [Back] Note 2 The instruction was maintained in the Guidance documents EU Settlement Scheme: person with a Zambrano right to reside Version 3.0, published 13 February 2020 at page 23; version 4.0 published 27 April 2021 at page 13. [Back] Note 3 The Essential Scalia, Crown Forum New York 2020 at p29 [Back] Note 4 Ibid p30 [Back]
Note 1 Section 33(1) of the Immigration Act 1971 states: “limited leave” and “indefinite leave” means respectively leave under this Act to enter or remain in the United Kingdom which is, and one which is not, limited as to duration. [Back]
Note 2 The instruction was maintained in the Guidance documents EU Settlement Scheme: person with a Zambrano right to reside Version 3.0, published 13 February 2020 at page 23; version 4.0 published 27 April 2021 at page 13. [Back]
Note 3 The Essential Scalia, Crown Forum New York 2020 at p29 [Back]
Note 4 Ibid p30 [Back]