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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Akinsanya v Secretary of State for the Home Department [2022] EWCA Civ 37 (25 January 2022) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2022/37.html Cite as: [2022] EWCA Civ 37, [2022] WLR(D) 39, [2022] 2 WLR 681, [2022] INLR 121, [2022] QB 482 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Mostyn
CO/4877/2020
Strand, London, WC2A 2LL |
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B e f o r e :
(Vice-President of the Court of Appeal (Civil Division))
LORD JUSTICE BEAN
and
LADY JUSTICE ANDREWS
____________________
OLORUNFUNMILAYO OLUWASEUN ![]() |
Claimant/ Respondent |
|
- and – |
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SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Respondent/Appellant |
____________________
Simon Cox and Michael Spencer (instructed by Hackney Community Law Centre) for the Claimant
Hearing date: 7 December 2021
____________________
Crown Copyright ©
Lord Justice Underhill:
INTRODUCTION
THE LEGAL FRAMEWORK
Articles 20 and 21 of the TFEU
"1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.
2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:
(a) the right to move and reside freely within the territory of the Member States;
(b)-(d) …
..."
"Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect."
The Zambrano Jurisprudence
"40. Article 20 of the FEU Treaty confers the status of citizen of the European Union on every person holding the nationality of a member state: see, inter alia, D'Hoop v Office national de l'emploi (Case C-224/98) [2004] ICR 137, para 27, and Garcia Avello v Belgian State (Case C-148/02) [2003] ECR I-11613, para 21. Since Mr Ruiz Zambrano's second and third children possess Belgian nationality, the conditions for the acquisition of which it is for the member state in question to lay down (see, to that effect, inter alia, Rottmann v Freistaat Bayern (Case C-135/08) [2010] QB 761, para 39), they undeniably enjoy that status: see, to that effect, the Garcia Avello case, para 21, and the Chen case, [2005] QB 325, para 20.
41. As the court has stated several times, citizenship of the European Union is intended to be the fundamental status of nationals of the member states: see, inter alia, Grzelczyk v Centre public d'aide sociale d'Ottignies-Louvain-la-Neuve (Case C-184/99) [2002] ICR 566, para 31; Baumbast v Secretary of State for the Home Department (Case C-413/99, [2003] ICR 1347, para 82; the Garcia Avello case, para 22; the Chen case, para 25; and the Rottmann case, para 43.
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 Union, would have to leave the territory of the 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 Union, having to leave the territory of the Union. In those circumstances, those citizens of the 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 Union.
45. Accordingly, the answer to the questions referred is that article 20 of [the TFEU] is to be interpreted as meaning that it precludes a Member State from refusing a third country national upon 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."
"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 TCN [third country national], with whom the Union citizen has a relationship of dependency, is removed."
He also referred us to para. 30, where Lady Arden observed that "[t]he test of compulsion is … a practical test to be applied to the actual facts and not to a theoretical set of facts".
(1) In Baumbast v Secretary of State for the Home Department C-413/99, [2003] ICR 1347, a German national child who was living in the UK was entitled under EU law (article 12 of EU Regulation 1612/68) to go to school here. The Court held that her mother, who was her sole carer and who was a Colombian national, was entitled to a derivative right of residence in the UK in order to facilitate the exercise of that right.
(2) In Chen v Secretary of State for the Home Department C-200/02, [2005] QB 325, a child with Irish nationality had the right to move to and reside in the UK under the predecessor of article 21. The Court held that her mother, who was her sole carer and who was a Chinese national, was entitled to a derivative right of residence in the UK because otherwise the child's right would be deprived of any useful effect.
(3) In the joined cases of London Borough of Harrow v Ibrahim C-310/08 and Teixeira v London Borough of Lambeth C-480/08, [2010] PTSR 1913, the Court essentially applied Baumbast in slightly different factual circumstances.
The development effected by Zambrano was that the children in that case had not (unlike in Chen) exercised their right under article 21 (1) to move from one member state to another, so that the father was seeking a right to reside with them in the very state of which they were nationals. The Court evidently did not regard that as a material distinction.[2]
(1) Directive 2003/109 requires member states, subject to various exceptions, to grant "long-term resident status" to third country nationals who "have resided legally and continuously within their territory for five years immediately prior to the submission of the relevant application" (I take that summary from para. 37 of the judgment in Iida, considered at paras 42-45 below).
(2) Directive 2004/38 (which consolidates and updates a number of earlier Directives) contains detailed provisions covering the exercise of article 21 rights by EU citizens and their members.
The EU Settlement Scheme
"The applicant will be granted ... indefinite leave to remain ... where
- …
- the applicant meets the eligibility requirements for indefinite leave to enter or remain in accordance with paragraph EU11 ...
- …"
"(a) The applicant:
(i) is a relevant EEA citizen; or
(ii) is (or, as the case may be, for the relevant period was) a family member of a relevant EEA citizen; or
(iii) is (or, as the case may be, for the relevant period was) a family member who has retained the right of residence by virtue of a relationship with a relevant EEA citizen; or
(iv) is a person with a derivative right to reside; or
(v) is a person with a Zambrano right to reside; or
(vi) is a person who had a derivative or Zambrano right to reside; and
(b) The applicant has completed a continuous qualifying period of five years in any (or any combination) of those categories; and
(c) Since then no supervening event has occurred."
It is the Claimant's case that she had at the material date "a Zambrano right to reside" and accordingly that she satisfies alternative (v) under limb (a); and that she had completed the five-years continuous qualifying period so that limb (b) is also satisfied. No issue arises about limb (c).
"a person who has satisfied the Secretary of State that … they are …
(a) resident for a continuous qualifying period in the UK with a derivative right to reside by virtue of regulation 16 (1) of the EEA Regulations, by satisfying:
(i) the criterion in paragraph (1)(a) of that regulation; and
(ii) the criteria in:
(aa) paragraph (5) of regulation 16 of the EEA Regulations; or
(bb) …; and
(b) without leave to enter or remain in the UK, unless this was granted under this Appendix."
I will refer to that as "the Annex 1 definition".
The EEA Regulations
"A person has a derivative right to reside during any period in which the person —
(a) is not an exempt person; and
(b) satisfies each of the criteria in one or more of paragraphs (2) to (6)."
"The criteria in this paragraph are that —
(a) the person is the primary carer of a British citizen ('BC');
(b) BC is residing in the United Kingdom; and
(c) BC would be unable to reside in the United Kingdom or in another EEA State if the person left the United Kingdom for an indefinite period."
"(c) an 'exempt person' is a person —
(i) who has a right to reside under another provision of these Regulations;
(ii) who has the right of abode under section 2 of the 1971 Act;
(iii) to whom section 8 of the 1971 Act, or an order made under subsection (2) of that section, applies[3]; or
(iv) who has indefinite leave to enter or remain in the United Kingdom (but see paragraph (7A))."
It will be noted that the persons covered by head (iv) are those with indefinite leave to remain: it does not cover those with only limited leave.
25. I note for completeness, though nothing turns on it here, that paragraph (7A) (with the reference to it in paragraph (7) (c) (iv)) was introduced by the Immigration (European Economic Area Nationals) (EU Exit) Regulations 2019. It provides that leave to remain granted by virtue of Appendix EU "is not to be treated as leave for the purposes of paragraph … (7) (c) (iv)".
THE FACTS AND THE SECRETARY OF STATE'S DECISION
"One of the requirements for qualifying for settled or pre-settled status as a person with a Zambrano right to reside is that you do not already hold leave to enter or remain in the UK, unless this was granted under the EU Settlement Scheme."
That is evidently an invocation of limb (b) of the definition of a person with a Zambrano right to reside: see para. 19 above.
THE ISSUES AND THE JUDGMENT OF MOSTYN J
35. Accordingly, as Mr Blundell put it at para. 28 of his skeleton argument before us, the only issue before Mostyn J was whether the Secretary of State had, in formulating the Annex 1 definition, "erred … in her understanding of (a) the Zambrano jurisprudence and (b) regulation 16 of the 2016 Regulations" – that is, by proceeding on the basis that the Zambrano right did not arise in circumstances where the carer in question had any form of leave to enter or remain. If she had, it was agreed that her decision would have to be quashed, and that she would be required to reconsider the terms of the definition.
(1) He held that a Zambrano right in EU law was not extinguished by "the existence of a concurrent limited leave to remain": see in particular para. 51 of his judgment.
(2) He further held that, even if the jurisprudence of the CJEU did not go that far, the domestic formulation of the Zambrano right in regulation 16 was quite clearly to the effect that the right conferred by paragraph (5) was only excluded where the carer enjoyed indefinite leave to remain, since paragraph (7) refers only to ILR: see in particular para. 70 of his judgment. He rejected an argument on behalf of the Secretary of State that the relevant provisions should be read down so as to confer rights that went no further than those accorded by EU law: see paras. 67-69.
On the same date he made an order quashing the decision of 29 September 2020 and two declarations. I need only set out the terms of the first, which read:
"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'."
GROUND 1: THE EFFECT OF THE ZAMBRANO JURISPRUDENCE
The Secretary of State's Case
"72. The common element in the above situations is that, although they are governed by legislation which falls a priori within the competence of the member states, namely legislation on the right of entry and stay of third country nationals outside the scope of Directives 2003/109 and 2004/38, they none the less have an intrinsic connection with the freedom of movement of a Union citizen which prevents the right of entry and residence from being refused to those nationals in the member state of residence of that citizen, in order not to interfere with that freedom.
73. As regards cases such as that at issue in the main proceedings, first, it must be observed that the applicant, who is a third country national, is not seeking a right of residence in the host member state in which his spouse and his daughter, who are Union citizens, reside, but in Germany, their member state of origin.
74. Next, it is common ground that that the applicant has always resided in that member state in accordance with national law, without the absence of a right of residence under European Union law having discouraged his daughter or his spouse from exercising their right of freedom of movement by moving to Austria.
75. Finally, as may be seen from paras 28 and 40–45 above, the applicant in the main proceedings has a right of residence under national law until 2 November 2012, which is prima facie renewable, according to the German Government, and can in principle be granted the status of long-term resident within the meaning of Directive 2003/109 .
76. In those circumstances, it cannot validly be argued that the decision at issue in the main proceedings is liable to deny Mr Iida's spouse or daughter the genuine enjoyment of the substance of the rights associated with their status of Union citizen or to impede the exercise of their right to move and reside freely within the territory of the member states: see McCarthy's case [McCarthy v Secretary of State for the Home Department C-434/09], para 49.
77. It must be recalled that the purely hypothetical prospect of exercising the right of freedom of movement does not establish a sufficient connection with European Union law to justify the application of that law's provisions: see Kremzow v Austrian State (Case C-299/95) [1997] ECR I-2629, para 16. The same applies to purely hypothetical prospects of that right being obstructed."
"… whether Articles 20 and/or 21 TFEU must be interpreted as conferring a right of residence in the host Member State both on a minor Union citizen who has resided since birth in that Member State but is not a national of that Member State, and on the parent, a third country national, who has sole custody of that minor, where the persons concerned qualify for a right of residence in that Member State under national or international law"
(para. 69). At paras. 70-72 it recapitulates the Zambrano principle. It continues:
"73. As regards a situation such as that at issue in the main proceedings, account must, first, be taken of the fact that both the applicant in the main proceedings and her daughters qualify for a right of residence in United Kingdom under Article 12 of Regulation No 1612/68, as stated in paragraph 66 of this judgment.
74. The first condition on which the possibility of claiming a right of residence in the host Member State under Article 20 TFEU, as interpreted by the Court in … Zambrano …, depends, namely that the person concerned does not qualify for a right of residence in that Member State under European Union secondary law, is in this case not met."
In short, the applicant was not entitled to a Zambrano right to reside because she already had a (derivative) right to reside based on EU Regulation 1612/68 – that being the "European Union secondary law" referred to (and the "international law" referred to in para. 69).
The Claimant's Case
"166. This appeal raises questions about the full implications of the Zambrano decision as a matter of EU law. The Secretary of State submits that they are extremely limited. Indeed, on his analysis there 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 right' conferred by virtue of the child's status as an EU citizen, to use the language in paragraph [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 TCN [third country national], in practical terms it is necessarily and always meaningless. At the very same moment as the State takes steps to exercise it, 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."
The equivalent part of Arden LJ's judgment is at paras. 33-75, and in particular paras. 71-74.
Conclusion on Ground 1
GROUND 2: THE CONSTRUCTION OF REGULATION 16
"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."
"Where a Directive allows a member state to go further than the Directive requires, there is … no imperative to achieve a 'conforming' interpretation. It may in a particular case be possible to infer that the domestic legislature did not, by a domestic formulation or reformulation, intend to go further in substance than the European requirement or minimum."
Although Lord Mance is there referring to the requirements of a Directive, the same principle must apply to any provision of EU law; and in the present case articles 20 and 21 of the TFEU would certainly not prevent a member state from granting further rights to third country national carers of EU citizen children than Zambrano requires. What Lord Mance says in that passage is not inconsistent with the phrase on which Mr Blundell relies from his judgment in Energy Solutions: that was not expressed as a general proposition but was explicitly directed to the particular scheme. In short, while it may well be relevant in construing implementing legislation of this kind to consider whether in the particular case the legislator is likely to have intended to go beyond the minimum required in order to achieve compliance with EU law, that is no more than a consideration forming part of the overall exercise of statutory construction.
DISPOSAL
"The Secretary of State erred in law in her understanding of regulation 16 of the Immigration (European Economic Area) Regulations 2016 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'."
I would substitute a declaration in those terms.
Bean LJ:
Andrews LJ:
Note 1 The applicant’s surname was in fact “Ruiz Zambrano”, but it has become conventional to refer only to the second part. [Back] Note 2 The point is not expressly discussed in the judgment itself but it is fully considered at paras. 69-122 of the Opinion of Advocate-General Sharpston.
[Back] Note 3 Section 8 of the 1971 Act concerns persons with diplomatic accreditation. [Back] Note 4 There might be a question as to why she thought it right even to exclude persons with indefinite leave to remain; but in fact that would not be unreasonable, since it hard to see how Zambrano could have any practical application to parents with settled status. [Back]