Limited leave to remain does not knock out a Zambrano claim – EIN Blog
‘R (Akinsanya) v Secretary of State for the Home Department [2021] 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), [2012] 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.’
EIN Blog , 21st June 2021
Source: www.ein.org.uk
