Zambrano claims and limited leave to remain: Court of Appeal hands down judgment

The Court of Appeal has handed down judgment in Akinsanya v Secretary of State for the Home Department [2022] EWCA Civ 37, an important case about the scope of the Zambrano right and its implementation in domestic law. The key issue was whether a person with a right to reside under domestic law (here, limited leave under Appendix FM) could qualify for a right to reside under the Zambrano principle. Allowing the Secretary of State’s appeal in part, the Court accepted the Secretary of State’s argument that a Zambrano right does not arise as a matter of EU law “as long as domestic law accords to Zambrano carers the necessary right to reside (or to work or receive social assistance) …” (para. 54). However, the Court concluded that under the Immigration (European Economic Area) Regulations 2016, a person who otherwise qualified for a Zambrano right was not excluded from a right to reside under those regulations simply because they had an alternative source of residence right in domestic law. When framing the rules in Appendix EU, the Secretary of State had proceeded on the basis that domestic legislation should be read consistently with EU law. Therefore, the Secretary of State is now reconsidering how to frame the relevant rules in Appendix EU for Zambrano carers. The Court made clear that nothing in its judgment could be taken as expressing any view about how the Secretary of State could or should amend the terms of the EUSS: see para. 70. David Blundell QC and Julia Smyth acted for the Secretary of State.