BRITISH NATIONALITY –REFUSAL OF APPLICATION FOR A BRITISH PASSPORT
R (on the application of Roehrig) v Secretary of State for the Home Department
The appellant’s, Mr Roehrig’s, appeal to the Civil Division of the Court of Appeal was rejected. This appeal challenged the decision of a judge who had dismissed the appellant’s claim for judicial review regarding the refusal of his application for a British passport by the Secretary of State.
The appellant argued that his mother’s presence in the UK during his birth stemmed from EU law, and the Immigration (European Economic Area) Regulations 2000 (IR 2000) mirrored these rights. Thus, maintaining controls on EU Member State nationals was deemed unlawful. The case of R (Coomasaru) v Immigration Appeal Tribunal [1983] 1 WLR 14, was also highlighted which involved permission granted based solely on employment with a specific employer. In contrast, his mother’s situation fell within the broader framework of EU free movement rights for ‘qualified persons’.
The court’s rulings included the following:
- The judge’s decision regarding the Immigration (European Economic Area) Regulations 2000 (IR 2000) as immigration laws under the relevant provision was deemed accurate. These regulations offered a clear path to settlement for those EU nationals who qualified.
- The appellant’s mother would have qualified under Reg. 15 of IR 2000 and could have applied for settlement. However, her failure to do so prevented the appellant from establishing his mother’s settlement status at the time of his birth.
- The judge correctly identified the principle from the case of Coomasaru and the attempt to distinguish the appellant’s mother’s situation from that case was deemed artificial. This is because she could have received indefinite leave to remain, but her right to stay in the UK was confined to her status as a ‘qualified person’.
If you would like to read the full court decision, click here.
HOW RIGHT TO REMAIN AFFECTS RIGHTS UNDER THE EU SETTLEMENT SCHEME (ZAMBRANO CARER)
R (on the application of Akinsanya and another) v Secretary of State for the Home Department
The claimants’, known as Zambrano carers, had applied to be granted indefinite leave to remain under Appendix EU. They challenged the defendant’s decisions that they were not eligible for indefinite or limited leave to remain under Appendix EU of the Immigration Rules. This was rejected by the Administrative court.
At the time they applied and upon the implementation of the withdrawal agreement governing the UK’s exit from the EU, they had received permission to stay under Appendix FM of the Immigration Rules. App EU aimed to offer a pathway for carers who held a Zambrano right to reside when the UK’s departure from the EU occurred, enabling them to secure either indefinite or limited leave to remain in the UK.
The defendant argued that according to a correct interpretation of EU law, only individuals who lacked leave to remain under another provision and had no genuine chance of obtaining such leave were entitled to a Zambrano right to reside. The defendant also argued that the claimants did have leave to remain under Appendix FM during the relevant periods, thus falling outside the range/scope of Zambrano.
The court emphasised that the defendant’s misunderstanding regarding the qualifications for a Zambrano carer did not affect the claimants’ case. The Court of Appeal determined that a Zambrano right to residency does not arise when an individual holds leave to remain.
This case explained how Zambrano rights apply to those with leave to remain in the UK after Brexit. It shows why it’s important to understand how having leave to remain affects someone’s rights as a Zambrano carer.
If you would like to read the full court decision, click here.
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