Admin Court rejects challenge to EU Settlement Scheme

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The Administrative Court has rejected two judicial review challenges to the EU Settlement Scheme, in a judgment handed down on Monday: [2024] EWHC 469 (Admin).

The Claimants challenged decisions that they were not eligible for either indefinite or limited leave to remain under Appendix EU of the Immigration Rules. The Claimants applied as Zambrano carers, but at the time of their applications and on the date when the Withdrawal Agreement came into effect each of them already had leave to remain which had been granted under Appendix FM of the Immigration Rules. Their applications were refused for that reason.

The Claimants argued that the Secretary of State had, when formulating her policy, wrongly proceeded on the basis that those with a realistic prospect of obtaining leave to remain would not have a Zambrano right in EU law. While accepting the Claimants’ case in that respect, the Court rejected the Claimants’ submissions that this should cause the court to quash the decisions in their cases and require the Defendant to reconsider the terms of Appendix EU and of the Guidance. In summary, this was because: (a) the Claimants actually had leave to remain under Appendix FM, so did not fall within that “realistic prospect” cohort; and (b) the contention that the Defendant might have taken a different approach to the definition of those with a Zambrano right to reside but for the misunderstanding, and included those in the Claimants’ position, was not tenable. The Court also rejected rationality and discrimination challenges.

One of the Claimants had brought an earlier judicial review claim, which was considered by the Court of Appeal in R (Akinsanya) v Secretary of State for the Home Department [2022] EWCA Civ 37, [2022] 2 WLR 681.

David Blundell KC, Julia Smyth and Natasha Jackson represented the Secretary of State.

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