R (Akinsanya) v Secretary of State for the Home Department  EWHC 1535 (Admin) (09 June 2021)
Mostyn J has held that the SSHD had erred when formulating in Annex 1 paragraph (b) of Appendix EU to the Immigration Rules the definition of a “person with a Zambrano right to reside” as “a person … without leave to enter or remain in the UK, unless this was granted under this Appendix”. His Lordship held that it is clear from the decision of the CJEU in Ruiz Zambrano v Office National de l’Emploi (C-34/09),  QB 265, that the holding of a limited national leave to remain and a wider right to remain could and would co-exist in many cases. Furthermore, the natural, fair, reasonable and plain meaning of the words set out in regulation 16 of the Immigration (European Economic Area) Regulations 2016 entitles an applicant for a derivative right to reside to have the application determined by reference to the prescribed eligibility criteria set out in the regulation rather than being struck out peremptorily. A Nigerian national, Olorunfunmilayo Oluwaseun Akinsanya arrived in the UK in 2006. She had four children, one of whom, C (aged 10), is a British national and she is C’s sole carer. Akinsanya had a six-month visitor visa. She then had a two-year family visit visa. When C was one year old, she applied for a derivative residence card as the Zambrano carer of C. The application was refused, but Akinsanya was successful in her appeal to the FTT and she was then issued with a five-year derivative residence card in September 2014.
In 2017 she could not work due to ill-health and she unsuccessfully applied for the “no recourse to public funds” condition on her right to reside to be removed on the basis of destitution. She applied for leave to remain under Appendix FM to the Immigration Rules on the basis of the family/private life 10-year route and was granted 30 months’ limited leave to remain, with no condition preventing recourse to public funds. In January 2020 she applied for ILR under the Settlement Scheme under Appendix EU of the Rules, on the basis that she was a Zambrano carer with five years’ continuous residence. Akinsanya’s application was refused in September 2020 on the basis that she was not eligible for the scheme because she had already been granted limited leave to remain, and was therefore barred by the definition of “person with a Zambrano right to reside” in Annex 1 paragraph (b) of Appendix EU. That was the decision challenged before Mostyn J in these judicial review proceedings. In Zambrano the CJEU decided that article 20 of the Treaty on the Functioning of the European Union must be interpreted as precluding a member state from refusing a third country national with minor EU citizen children dependents a right of residence and the grant of a work permit. In essence, the court had to decide whether the SSHD, in promulgating Appendix EU to the Immigration Rules on 7 March 2019, erred in law in his understanding of the scope of (i) the Zambrano jurisprudence, and
(ii) regulation 16 of the 2016 Regulations.
The High Court
The court granted the application for judicial review. Mostyn J first addressed the scope of the Zambrano jurisprudence and then analysed regulation 16. With some vehemence, the court disagreed with the positions espoused by the SSHD as regards Zambrano.
(i) The Zambrano jurisprudence
Mostyn J explained that while the precise details are somewhat convoluted, the essential challenges by the Zambrano parents were, first, to the rejection of their applications for permanent residence made in April 2004, and, second, to the rejection of Mr Zambrano’s application for unemployment benefit. The question that was decided by the CJEU had been referred to it by the court considering the challenge to the refusal of unemployment benefit. In Zambrano the Belgian court referred three questions to the CJEU which had distilled the questions at paragraph 36 as “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.” Zambrano was heard in January 2010 and by that time Mr Zambrano had been granted a limited residence permit and a work permit. His limited entitlements did not render the questions posed moot or academic. No such suggestion was ever made.
Yet this did not prevent the SSHD’s counsel Mr Thomann from oddly claiming that it has been a fundamental condition for the application of the Zambrano principle from its very inception that there be compulsion to leave the EU if the right of residence is not granted and, in practice, the CJEU’s case law has imposed a high threshold for compulsion, to be demonstrated clearly. Mostyn J was quick to reject the dubious claim and held:
20. … 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.
His Lordship highlighted paragraphs 42–45 of the Zambrano judgment where the CJEU held that article 20 of the TFEU precludes national measures which have the effect of depriving EU citizens of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the EU. It stressed that 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. The court said that it must be assumed that such a refusal would lead to a situation where the EU citizen children would have to leave EU territory in order to accompany their parents. In essence – in such circumstances – they would be unable to exercise the substance of the rights conferred on them by virtue of their status as EU citizens. Thus the substance of rights test would apply. It was quite obvious to Mostyn J that the CJEU was talking about the grant of a long-term right of residence and a long-term right to work, at least while the children were minors. Accordingly, he held:
22. … Had the court intended to convey that the right of residence, and the right to work, would be satisfied by the grant of a mere temporary, limited, residence permit and a mere temporary, limited, work permit, then it would have said so, and on the facts of that case would have pointed out that Mr and Mrs Zambrano already had everything they were entitled to. But it did not. Plainly, it decided that the parents of those EU citizens were entitled to a long-term right of residence and a long term right to work to facilitate genuine enjoyment by the children of their substantive rights as EU citizens.
23. My reading of the judgment certainly does not yield a conclusion that the court was advancing this new right as a “fall back principle of last resort”, as Mr Thomann put it. If it had intended that to be the case it would have said so, and would certainly have gone on to point out that the principle was not applicable in the case before them because of the protection and rights already granted to Mr and Mrs Zambrano.
24. It is my clear reading of the judgment that a claim for a Zambrano derivative right of residence is not extinguished by the existence of a current limited right to remain and work awarded under national law. By contrast, I accept the implication in the judgment that if a person had been granted under national law indefinite leave to remain (with recourse to public funds) then that would, at any rate in theory, be a knock-out blow to a claim for a Zambrano derivative right of residence. This is because the rights claimed would be congruent with the rights already granted. I say “at any rate in theory” because it would be completely pointless to make a Zambrano claim in such circumstances.
That was the UK government’s clear view at the time and regulation 16’s predecessor, regulation 15A of the Immigration (European Economic Area) Regulations 2006, was introduced into the 2006 Regulations by the Immigration (European Economic Area) (Amendment) (No. 2) Regulations 2012, explicitly provided that an ILR holder would be “exempt” and was debarred from acquiring a Zambrano right of residence. But a person holding a mere limited leave to remain was not exempt. Thus, paragraph 10 of the 2012 Home Office Guidance correctly stated the effect of regulation 15A. It was effective right up to 2 May 2019, when the SSHD (Sajid Javid MP) changed his mind and issued one of the guidance documents challenged by judicial review in these proceedings, namely Free Movement Rights: derivative rights of residence (version 5.0) which oddly asserted a completely different interpretation of the (identical) successor to regulation 15A. Mostyn J observed that regulation 15A was reiterated in 2016 without alteration and it was also amended in 2019 to deal with leave granted under the EUSS. However, neither of those amendments altered its categorisation of ILR, which remained intact since it was first issued in 2012.
Next, Mostyn J considered some CJEU and domestic cases and he noted that in SSHD v A (C-115/15),  QB 109, a Pakistani national married a German citizen and the couple moved to the UK where the husband worked. The couple had two children who were born in the UK but had German nationality. Ms A was the victim of domestic violence and she divorced her husband, but the divorce proceedings were not commenced until after he had left the UK. Ms A was given sole care of their children, who attended schools in the UK.
The decision-maker refused her a permanent right of residence in the UK. However, the UT allowed her alternative appeal under the Human Rights Act 1998 and ordered that she and the children be granted a right of residence under that provision. Notably, the SSHD did not appeal that decision. Advocate General Wathelet said it was not apparent that the issue which had prompted the questions referred was purely hypothetical and that a right of residence based directly on EU law would at the very least be such as to afford Ms A an increased level of legal certainty. The CJEU acknowledged that the questions were not hypothetical. The existence of the leave granted under the Human Rights Act 1998 did not knock out the Zambrano claim which again showed clearly that the CJEU does not regard the grant of a current limited leave to remain as extinguishing the claim for a Zambrano derivative right of residence. The CJEU addressed the specific questions and held that Ms A could not rely on article 13(2)(c) of Directive 2004/38/EC in circumstances where the commencement of divorce proceedings post-dated the departure of the EU citizen spouse from the UK. But she and her children qualified for a right of residence under article 12 of Council Regulation (EEC) No 1612/68. Accordingly, that right of residence having been established under secondary EU law, she did not gain a further right of residence under the Zambrano principle.
At paragraph 81, the CJEU interpreted article 20 TFEU to mean that it does not confer a right of residence in the host member state either on a minor EU 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. Against that position in Ms A’s case, the SSHD argued that there was 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. She submitted that 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. Mostyn J remained unimpressed with the argument and said:
35. I disagree. EU secondary law rendering a claim for a Zambrano right of residence redundant is perfectly understandable. The right of residence being granted under EU secondary law is long-term, lasting at least as long as the minority of the children. Being granted under EU secondary law, it applies uniformly and equally throughout the Union. A limited leave to remain granted by a particular country under its national law is a different thing altogether. As the Advocate-General observed, it affords far less legal certainty than a residence right granted under EU secondary law. Under UK national law, limited leave to remain is inherently precarious and tenuous. It is always granted in the first instance subject to a no-recourse-to-public-funds condition. The leave must be reapplied for every 30 months and the process for that is complicated. Under the 10-year route fees are chargeable periodically totalling £11,104 (although these can be waived).
36. I disagree that the only consideration is whether, absent the grant of a Zambrano right, the applicant would be compelled to leave. I have given my reasons for that conclusion above. I disagree that the source of the alternative right is not material. On the contrary, I think that it is critically material and that accordingly the CJEU was very careful to confine the alternative residence rights only to those arising under secondary EU law. Had the court intended a national law granting a limited residence right to be a Zambrano extinguishing factor, then it would no doubt have said so. But it did not.
37. In my judgment a proper analysis of the EU cases clearly demonstrates that the court did not consider a limited leave to remain under national law to be a Zambrano extinguishing factor. Similarly, the domestic cases do not, when properly analysed, support the general extinguishment theory advanced on behalf of the Secretary of State.
In Sanneh v SSWP  QB 455, Arden LJ accepted that a right to reside deriving from a limited leave to remain, would coexist with a right to reside deriving from Zambrano, and that therefore, inferentially, the former did not extinguish the latter. Robustly setting out his understanding of the nature and extent of the Zambrano right of residence, Elias LJ rejected the SSHD’s analysis that the Zambrano right is extremely limited and in his view the point was “barely coherent”. The SSHD’s position was made all the more bizarre given that someone not lawfully present in the UK is under a duty to leave, and remaining as an overstayer is a criminal offence. Elias LJ’s lucid analysis showed that a Zambrano right is a substantive right, and not merely a procedural defence to deportation; it confers “at all times” a right to stay, which minimally means, a right to stay while the children are in their minority; and where under domestic law an entitlement to social benefits depends on lawful or habitual residence, then a Zambrano carer will qualify for them. Mostyn J found no doubt that these aspects of the residence right afforded to a Zambrano carer far exceed the entitlements granted to someone with limited leave to remain. He said it was a fallacy to suggest that the grant of limited leave to remain has the effect of extinguishing a claim to Zambrano rights, such as view was “illogical”.
The decision of the Supreme Court in Patel v SSHD  UKSC 59 (discussed here) did not answer the question before the court, i.e. whether the existence of any limited leave to remain of itself acts to extinguish a Zambrano claim. Patel addressed the scenario, which was not this case, where the Zambrano applicant does not have limited leave to remain of any nature. In that circumstance, Mostyn J understood why the focus is on the question of whether, for reasons of practical reality, the cared-for British citizen would also have to leave if his carer were expelled. The SSHD relied on paragraph 16 of judgment of Patel and claimed that Arden LJ’s view there pointed up the sui generis nature of this creation of EU law. Mostyn J did not doubt that the CJEU’s creation was unique but its uniqueness did not inform the court in relation to anything the question it had to decide, i.e. whether it is automatically extinguished if there is, at the time that it is claimed, a concurrent limited leave to remain?
Mostyn J disagreed with the view in the EU Settlement Scheme: person with a Zambrano right to reside (version 4.0, 27 April 2021) guidance that in Patel v SSHD  EWCA Civ 2028 the Court of Appeal said that a person with leave to remain under domestic law cannot benefit from a derivative right to reside on the basis of Zambrano. He said that the Court of Appeal (Irwin LJ) did not as part of its ratio decidendi state that a someone with existing leave to remain cannot benefit from Zambrano. The decision did not say that and if it were to, it would clash with the governing CJEU jurisprudence. Mostyn J held that:
49. … 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.
51. My conclusion is that nothing decided in the CJEU or domestically since the decision in Zambrano supports the theory that the existence of a concurrent limited leave to remain of itself automatically extinguishes a claim for Zambrano residence. On the contrary, it is clear to me from the facts of Zambrano itself that the CJEU tacitly acknowledged that a limited national leave to remain, and a wider Zambrano right to remain, in many cases can and will coexist.
The EU Settlement Scheme: person with a Zambrano right to reside (version 4.0, 27 April 2021) guidance stated at page 13, that if the applicant has limited leave to remain expiring more than 28 days after the decision date, then his or her 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 will still refuse the application. Mostyn J said that it was “quite beyond” him how this gives effect to the principle in Zambrano and remarked that the the answer to his “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.” He therefore decided that the SSHD erred in law when she formulated Annex 1 paragraph (b) of Appendix EU to the Immigration Rules.
(ii) Regulation 16
The court said that regulation 16 first emerged as the rewritten regulation 15A of the 2006 Regulations, which accurately reflected the true legal scope of Zambrano and ILR was maintained in regulation 16(7)(c)(iv) as the only criterion for an exempt person. But the Immigration (European Economic Area Nationals) (EU Exit) Regulations 2019 had amended the 2016 Regulations, adding a new regulation 16(7A) which had modified the definition of an exempt person to exclude someone who had been granted leave to remain in the UK under the EU Settlement Scheme.
Mostyn J judged that “the significance of that cannot be overstated” as the SSHD had modified the definition of leave to allow someone granted leave under the scheme nonetheless to apply for a Zambrano derivative residence right, yet chose not to modify any other aspect of the regime governing leave. However, a few weeks later the internal Free Movement Rights: derivative rights of residence (version 5.0) which took effect on 2 May 2019, said that people with limited leave to remain could not apply for a Zambrano derivative right to reside.
Caseworkers were guided to refuse a Zambrano application if the applicant (a) has never made an application under Appendix FM of the Immigration Rules. or any other claim invoking article 8 of the ECHR , where that avenue is available, and (b) has been refused under Appendix FM or article 8 of the ECHR but their circumstances have changed since the decision was made – for example, the applicant had applied on the basis of their relationship with a British spouse, but the couple now have a British child. Observing that the instruction was maintained in the EU Settlement Scheme: person with a Zambrano right to reside Version 3.0 and version 4.0 (published 13 February 2020 and 27 April 2021 respectively), Mostyn J lamented that:
63. It is troubling, to say the least, that this instruction should have been issued requiring staff to ignore the clear terms of the 2016 Regulations, and therefore to act unlawfully.
The SSHD advanced the argument that the court should construe the 2016 Regulations so that they conform with what she maintained to be Zambrano‘s true scope. Having thrown out the SSHD’s argument that the true scope of the Zambrano case law does not extend to people with limited leave to remain, Mostyn J heard detailed submissions on the point as it may be that a higher court disagrees with his primary conclusion. In such a situation, consideration had to be given to what the SSHD was inviting the court to do? As Mostyn J recorded:
66. In effect the Secretary of State is asking me, rather than herself as rule maker and Parliament as rule approver, to write words (which I have underlined and highlighted) into Regulation 16(7)(c)(iv) and Regulation 2 so that they read: “16 (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. 2 “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.
Mostyn J observed that when the court was construing legislation intended to transpose an EU Directive which did not appear fully to do so, it was allowed to construe the domestic legislation in a broad-meaning and far-reaching way. The implication of words necessary to comply with EU law obligations was permitted. But the meaning had to be compatible with the underlying thrust of the legislation. A free-wheeling approach would violate the norms of statutory construction and was illogical. The court followed Barnard v Gorman  AC 378 to hold that if the natural meaning of the words in the domestic measure appeared to grant its users an uncovenanted bonus, the correct remedy lay in the hands of the rule-makers and Parliament, not judges whose duty in the matter is plain and requires them not give statutory words a wider meaning merely because a narrower construction of the words might leave a loophole for frauds against the revenue. It is not for judges to try to cure such dilemmas as that is Parliament’s business. Judges are under a duty to take the words as they stand and to give them their true construction always preferring the natural meaning of the word involved. Mostyn J further observed that in the US, eminent personalities such as Justice Felix Frankfurter and Justice Antonin Scalia had stressed the importance of knowing what the words in legislation mean. He held that:
70. Even if I am wrong about the juridical scope of the Zambrano decision, it is my judgment nonetheless that neither a textual nor a contextual construction of Regulation 16 can yield a meaning which so radically reduces its reach. To do so crosses the line identified by Lord Nicholls in Ghaidan v Godin-Medoza  2 AC 557 at .
The court could not add words to a domestic statutory instrument which have the effect of stripping away rights from what may be a substantial cohort of applicants. The change on 2 May 2019 led to a substantial number of Zambrano applications being rejected and the court was informed that between 28 August 2018 and 31 March 2021, 3,840 Zambrano applications were received: 3,300 of these were concluded and 1,160 were granted status, and 2,090 were refused. A straight-line apportionment suggested that some 1,550 refusals were issued between May 2019 and March 2021 and it was likely that many refusals were based on the applicant’s existing limited leave to remain. Adopting quite a no-nonsense approach, Mostyn J explained further:
72. It seems to me that in seeking to imply words into Regulation 16(7)(c)(iv) and Regulation 2 which completely change the scope, and therefore the meaning, of those provisions, I am being asked to apply the same dubious method of construction which was so memorably and eloquently decried by Lord Atkin in Liversidge v Anderson  AC 206.
73. It is my judgment that, irrespective of the true scope of the Zambrano jurisprudence, the natural, fair, reasonable and plain meaning of the words of Regulation 16 entitle an applicant under the 2016 Regulations for a derivative right to reside to have the application determined by reference to the prescribed eligibility criteria in that Regulation rather than being struck out peremptorily. The existing words in Regulation 16 are clear and the proposed amendments go well outside the permissible range of meaning of those words.
The court reiterated Lord Mersey’s point in Thompson v Goold & Co  AC 409 that “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.” Mostyn J was unimpressed with the SSHD’s request for him to do her amending for her.
He said that in the event that the SSHD suffered from anxiety that persons holding limited leave to remain should also be treated as exempt persons, the easiest thing to do would be for the 2016 Regulations to be amended again. He was unsympathetic that this would not be straightforward as the 2016 Regulations have in fact been revoked by the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020, Schedule 1(1) paragraph 2(2) with effect from 31 December 2020 but the revocation has effect subject to savings specified in two statutory instruments made pursuant to the 2020 Act. Although it was not straightforward to make amendments to the preserved provisions, this difficulty was of no relevance to the decision that the court had to make and it was open to the SSHD to have made the amendments to the 2016 Regulations before 31 December 2020.
In the wider context, the UK in a Changing Europe has recently published a report on the EUSS which ominously predicts that tens or perhaps even hundreds of thousands of EU citizens will be left in limbo without a legal immigration status on 1 July 2021. Last month, a report by the EU Rights and Brexit Hub advocated the use of emergency measures (such as a temporary right to reside to those eligible to apply late to the EUSS) to ensure that the EU concerned nationals are protected from the hostile environment after the looming 30 June 2021 deadline.
The outcome in Akinsanya’s case shows some very poor decision making by the SSHD (Mr Sajid Javid MP) to try to strangle the scope of the Zambrano jurisprudence and the substance of rights test. It is clear in light of Mostyn J’s judgment that an existing limited leave to remain does not knock out a Zambrano claim. And in any event, the court is not able to resort to a dubious method of construction just to please the executive because a free-wheeling approach violates the norms of statutory construction and is illogical. It is an interesting coincidence that Mostyn J was born in Nigeria, Ms Akinsanya’s country of origin. On 9 June 2021, Mostyn J ordered that the SSHD 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.”
Allowing the claim for judicial review, the court decided that the Free Movement Rights: derivative rights of residence (version 5.0) and the EU Settlement Scheme: person with a Zambrano right to reside” (version 4.0) are legally erroneous insofar as they state that a person who has limited leave to enter or remain in the UK cannot also have a derivative right to reside under regulation 16(1) of the 2016 Regulations, by satisfying the criteria in regulation 16(5) of those Regulations.
Mostyn J ordered the SSHD make a payment on account of £25,000 towards the costs of this judicial review claim and he ordered a detailed assessment of Akinsanya’s publicly funded costs. The court quashed the decision to refuse her ILR under Appendix EU of the Immigration Rules and refused the SSHD permission to appeal as an appeal had no real prospect of success. By way of a consent order on 17 June 2021, the SSHD confirmed that she will reconsider the relevant provisions of Appendix EU and will not decide applications made under Appendix EU on the basis that the applicant is or was a person with a Zambrano right to reside and is affected by the court’s judgment, until after the reconsideration of Appendix EU is completed.
The fast-approaching deadline to submit EU Settlement Scheme applications is 30 June 2021 and a hearing was scheduled for 17 June 2021 as Akinsanya wished to ask the court to suspend the deadline of 30 June 2021 for Zambrano carers owing to legal uncertainty. But this hearing for further relief was vacated through the consent order dated 17 June 2021. The further quashing relief was stayed pending determination of the SSHD’s application to the Court of Appeal for permission to appeal and, if permission is granted, determination of that appeal.
Some other terms of the consent order on 17 June 2021 specified that in accordance with paragraph (c) of the definition of “EEA Regulations” set out 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 decided on the basis of the 2016 Regulations as they stood immediately before they were revoked, and, where the context requires it, on the basis that they had not been revoked. Further, where a valid Zambrano application is made on or before 30 June 2021, the SSHD will provide the applicant with a certificate of application which confirms their entitlement to work, study and rent a place to live, until a final determination of their Zambrano case. The SSHD 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.
The SSHD also 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 of the relevant provisions of Appendix EU, Zambrano claims 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 as defined. Prior to the expiry of this period, 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, i.e. within 28 days of the date of the written notice.
On the whole, if Mostyn J’s rationale prevails in the Court of Appeal and/or the Supreme Court then he will surely have the last laugh.