Points to consider
1. On the SSHD's original Intention
After Brexit 2016, Parliament, the Government and the Home Office stated their original intention. They said they would allow people who were lawfully in the UK to remain in the UK. Between Brexit and March 2019, the Home Office said specifically that their intention was to allow Zambrano carers to qualify for settlement under the EU scheme (Appendix EU). After March 2019, the Home Office changed their intention. They created two categories of Zambrano carers. Even if they now want to say this document represents their original intention, which we don't accept, their original intention, is irrational and discriminatory. There is no public benefit to excluding Zambrano carers like Ms Akinsaya from settlement. By granting settlement to just a subcategory of Zambrano carers, the Home Office makes a distinction that is unlawful. Zambrano carers should not be punished for the Home Office's incorrect definition of the term Zambrano carer.
2. On the SSHD's behaviour leading up to 31 December 2020
The Home Office strongly encouraged Zambrano carers to apply for leave to remain under Appendix FM and then later refused those same applicants under Appendix EU. Second,the Home Office refer to the EEA Regulations in their recent refusal letters. The Home Office rely on only the parts of the EEA Regulations they agree with. At the very least, they should have communicate how their position differs from the EEA Regulations in a fair, timely and transparent way. Moreover, if the Home Office rely on the Regulations as a basis for their decisions, which they did in their recent batch of refusals, then they should have to accept the EEA Regulations' definition of a Zambrano carer. According to the Court of Appeal, Ms Akinsaya is a Zambrano carer. I can't see how the Home Office can be permitted to 'cherry pick' what areas of the EEA regulations they agree with, but perhaps someone has case law on this point to show they can.
3. On the 2003 Directive
The 2003 Directive grants permanent residence to third country nationals who reside in an EU member state for five years and meet certain basic requirements. For many years, it was argued that Zambrano carers could not rely on this directive because they had a temporary status. They were put into the same group as au pairs. In March 2022, the Netherlands judge referred the question of whether Ms E.K., a Ghanain national, was entitled to Directive 2003, to the District Chamber in The Hague. In September 2022, the Grand Chamber ruled she was covered by the 2003 Directive. Had the UK courts recognised Zambrano carers under the 2003 Directive, Ms Akinsaya would have acquired permanent residence by 2017.
4. On the Withdrawal Agreement
The Withdrawal Agreement is considered to not apply directly to UK based Zambrano carers of British children. The WA references the 2004 Directive. The 2004 Directive does not account for this group. However, the WA asks UK judges to take into consideration EU rulings post Brexit:
Article 4: Methods and principles relating to the effect, the implementation and the application of this Agreement
5. In the interpretation and application of this Agreement, the United Kingdom's judicial and administrative authorities shall have due regard to relevant case law of the Court of Justice of the European Union handed down after the end of the transition period.
The September ruling on the 2003 Directive establishes that Ms Akinsaya had a right to reside permanently in the UK. This right is based on human rights. Once a human right is acquired, it can not be taken away at a group level, and not without good, specific reasons. Yet, the Withdrawal Agreement, as currently worded, appears to do just that:
PART TWO CITIZENS' RIGHTS TITLE I GENERAL PROVISIONS Article 9 Definitions
For the purposes of this Part, and without prejudice to Title III, the following definitions shall apply:
(a) "family members" means the following persons, irrespective of their nationality, who fall within the personal scope provided for in Article 10 of this Agreement:
(i) family members of Union citizens or family members of United Kingdom nationals as defined in point (2) of Article 2 of Directive 2004/38/EC of the European Parliament and of the Council (5);
(ii) persons other than those defined in Article 3(2) of Directive 2004/38/EC whose presence is required by Union citizens or United Kingdom nationals in order not to deprive those Union citizens or United Kingdom nationals of a right of residence granted by this Part;
Either the WA is unlawful, because it strips UK based Zambrano carers of British children of their acquired right, or this group is protected by the Withdrawal Agreement.
If they are protected by the WA, Ms Akinsaya is entitled to permanent residence under the EU Settlement Scheme:
Article 15 Right of permanent residence
1. Union citizens and United Kingdom nationals, and their respective family members, who have resided legally in the host State in accordance with Union law for a continuous period of 5 years or for the period specified in Article 17 of Directive 2004/38/EC, shall have the right to reside permanently in the host State under the conditions set out in Articles 16, 17 and 18 of Directive 2004/38/EC. Periods of legal residence or work in accordance with Union law before and after the end of the transition period shall be included in the calculation of the qualifying period necessary for acquisition of the right of permanent residence.
2. Continuity of residence for the purposes of acquisition of the right of permanent residence shall be determined in accordance with Article 16(3) and Article 21 of Directive 2004/38/EC.
3. Once acquired, the right of permanent residence shall be lost only through absence from the host State for a period exceeding 5 consecutive years.
Moreover, Article 21 of the TFEU calls for the protection of people who exercised their right to reside as part of their human rights. The UK agreed to uphold Article 21 in the Withdrawal Agreement.
5.The SSHD's position provides no public benefit
A Zambrano right is a human right. It should apply universally. However, there are now four types of Zambrano carers.
1.) Zambrano carers based in an EU member state;
2.) Zambrano carers based in the UK, who never applied for leave to remain under Appendix FM;
3.) Parents who applied for leave to remain under Appendix FM and then later applied for a derivative residence card; and,
4.) Zambrano carers based in the UK who applied for leave to remain under Appendix FM.
Group 1 will now have permanent residence after 5 years under the 2003 Directive (as long as they meet the basic requirements). Group 2 seems to have been granted settlement by the Home Office. Group 3 seem unlikely to ever get EU settlement because the Court of Appeal ruled they are not really Zambrano carers. Group 4 represents two groups. The first group managed to get settlement either by going to court or because the Home Office gave them residence. The second group, the Akinsaya group, are fighting for residence.
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