[2024] UKUT 00143 (IAC)

We accept as the Court of Appeal indicated at [45] when recording the Secretary of State’s submission, that Velaj was concerned with a different provision of Regulation 16 which was not so clearly worded as that with which the Court was concerned in Akinsanya. However, what is said about the implications of the Akinsanya judgment at [57] to [70] of Velaj is instructive for our purposes:

“57.

This Court found for the SSHD on the first issue. After analysing the Zambrano jurisprudence…Underhill LJ concluded that as a matter of EU law, a Zambrano right is a right of last resort which does not arise if the third-country national carer otherwise enjoys a right under domestic law to reside in the member state in question.

58.

However, the conclusion that the definition in Annex 1 to Appendix EU did accurately reflect the Zambrano jurisprudence was not the end of the matter. As Underhill LJ explained at [57] it was unclear whether in framing that definition the SSHD intended to restrict rights under the EUSS to people whose rights to reside at the relevant dates directly depended on Zambrano, or whether her intention was to extend those rights to ‘all those carers whose removal would result in an EU citizen dependant having to leave the UK’. The Court could not, and was not required to, explore the SSHD's purpose in framing the definition because it accepted Ms Akinsanya's case on the construction of Regulation 16.

59.

It is important to understand what that case was. It is set out at [59] of the of the judgment in Akinsanya:

‘the claimant's case is that limb (b) of the Annex 1 definition is inconsistent with the definition of ‘exempt person’ in regulation 16 (7). Head (iv) of that definition covers a person ‘who has indefinite leave to enter or remain in the United Kingdom’; but it says nothing about persons with only limited leave. The claimant contends that persons with limited leave are accordingly not exempt persons and by virtue of paragraph 1(b) are entitled to a derivative right to reside, alongside their leave to remain, so long as they satisfy the criteria under one of paragraphs (2)–(6).’

[Emphasis added].

60.

Thus Ms Akinsanya's case on Regulation 16 was entirely focused upon Regulation 16(7). She accepted that if she was not exempt, her entitlement to a derivative right to reside would depend on her being able to satisfy the criteria in Regulation 16(5). However the question whether she could or could not do so if she had leave to remain under some other provision of domestic law did not directly arise, and it was not something which this Court considered on her appeal.

61.

Ms Akinsanya had already satisfied those criteria and obtained her derivative rights of residence as a Zambrano carer before she was granted limited leave to remain. She met the requirements of Regulation 16(5)(c) or its predecessor, Regulation 15A(4A), at the time when she was granted her derivative right of residence. The only question in her case would be whether the grant of limited leave to remain somehow superseded her Zambrano right or meant that she was no longer entitled to it – she was contending that it did not because the two rights could co-exist. It was common ground that if she won on either of her grounds of appeal, the impugned decision to refuse her claim under the EUSS (on the basis that she did not qualify) would have to be reconsidered by the SSHD.

62.

As Underhill LJ pointed out at [60] the claimant's case was clearly right on any natural reading of Regulation 16(7), and it also reflected the understanding of the Home Office at the time when the Amendment Regulations, which introduced the concept of ‘exempt persons’ were made. Guidance issued to UK Border Agency staff in 2012 stated that: ‘where someone has limited leave (and so is not listed as one of the exempt categories above) and can demonstrate that they meet all other requirements of regulation 15A, then they can acquire a derivative right of residence.’

63.The focus of the argument thereafter was on whether Regulation 16(7) should be given a construction that was different from its ordinary and natural meaning. Mr Blundell submitted that the SSHD in making the Regulations had not intended to accord rights to carers of EU citizen children that went beyond their entitlement in EU law and that Regulation 16(7) should therefore be construed in such a way as to avoid that result. That submission was rejected.

64.

Whilst accepting the likelihood that in making the relevant parts of Regulation 16 the SSHD intended, in a broad sense, to do no more than to implement the minimum requirements of Zambrano, Underhill LJ said that this begged further questions. The SSHD may have misunderstood what those requirements were, since Iida and A had not been decided when the Amendment Regulations were made in 2012. Alternatively,

‘it may be that the Secretary of State took the view that allowing a Zambrano right to reside to those who already had limited leave to remain was more straightforward than having to consider whether particular forms of leave to remain, and in particular the conditions about working to which they might be subject, were fully consistent with Zambrano rights.’

In the end, however, he said that the short answer was that the language of Regulation 16(7)(c)(iv) [which referred specifically to persons with ILR] was simply too clear to allow it to be construed as covering persons with limited leave to remain. That was the ratio of the decision in Akinsanya.

65.

In Akinsanya this court was not required to consider, and did not consider, the requirements of Regulation 16(5) and how 16(5)(c) might be satisfied in practice by a primary carer who had limited leave to remain. The only issue it had to determine was whether Regulation 16(7) acted as a threshold barrier precluding someone like Ms Akinsanya from asserting that she had a derivative right of residence under Regulation 16(5) (or its predecessor) which had survived the subsequent grant to her of limited leave to remain.

66.

The Court in Akinsanya did not have the benefit of hearing the arguments that were advanced in the present case. Those arguments would have had no bearing on the point of construction of Regulation 16(7) which determined the outcome. In those circumstances, even if I had not been a member of the constitution in that case, and able to gainsay the suggestion from my own personal knowledge of what was and was not considered, it would have been impossible to draw the inference that the Court must have interpreted Regulation 16(5)(c) in a particular way in order to reach the conclusion that it did.

67.

Mr Cox submitted that the criteria for the grant of the derivative right could not be met by a sole primary carer with limited leave to remain if the words ‘if the person left the UK for an indefinite period’ in Regulation 16(5)(c) were not construed in the manner for which he contended, i.e. as a purely hypothetical premise. If a carer already had limited leave to remain they would not, in fact, leave the UK for an indefinite period and the child would not be compelled to leave with them.

68.

Although I see the force of that argument, the immigration status of a person with limited leave to remain is precarious; leave is likely to be subject to conditions and it is liable to be withdrawn or truncated. It is possible to conceive of situations in which the conditions attached to a limited leave to remain are such as to make it impossible in practice for the primary carer to remain in the UK and look after the child.

69.

I can also envisage a Zambrano carer whose limited leave to remain is due to expire making an application under Regulation 16(5)(c) and succeeding on the basis that they would have to leave the UK as soon as their limited leave expired and the child would have to go with them. In such a case if the decision-maker asks ‘what will happen to the child in the event that the primary carer leaves the UK for an indefinite period?’ they will not be positing a completely unrealistic scenario. In any event, the practical difficulties of someone with limited leave to remain being able to satisfy the requirements of Regulation 16(5)(c) would not be a justification for construing those requirements in a manner which was clearly unintended.