apollo_alpha wrote: ↑Tue Jun 15, 2021 6:09 pm
Declarations and Order of the court in the Akinsanya Case:
IN THE HIGH COURT OF JUSTICE CO/4877/2020
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
BETWEEN:-
The Queen (on the application of)
Olorunfunmilayo Oluwaseun Akinsanya
Claimant
-and-
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Defendant
ORDER
BEFORE THE HONOURABLE MR JUSTICE MOSTYN, handing down judgment remotely under the COVID-19 Protocol on 9 June 2021;
UPON hearing counsel for the Claimant and counsel for the Defendant;
IT IS DECLARED THAT:
1. The Secretary of State 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.”
2. The Guidance issued by the Secretary of State (1) “Free Movement Rights: derivative rights of residence” (version 5.0 of 2 May 2019) and (2) “EU Settlement Scheme: person with a Zambrano right to reside” (version 4.0 of 27 April 2021) is legally erroneous insofar as it states that a person who has limited leave to enter or remain in the UK cannot also have a derivative right to reside by virtue of regulation 16(1) of the Immigration (European Economic Area) Regulations 2016, by satisfying the criteria in regulation 16(5) of those Regulations.
IT IS ORDERED THAT:
3. The claim for judicial review is allowed.
4. The Defendant’s decision of 29 September 2020 refusing the Claimant indefinite leave to remain under Appendix EU of the Immigration Rules is quashed.
5. The Claimant’s application for further relief is adjourned to Thursday 17 June 2021 at 10:30, time estimate two hours, to be heard remotely via Microsoft Teams.
6. The Defendant shall pay the Claimant’s costs, to be the subject of a detailed assessment on the standard basis if not agreed. This order for costs does not cover the aforesaid application for further relief. The costs of that application shall be determined following the hearing listed by paragraph 5 above.
7. The Defendant shall by 16:00 on Tuesday 6 July 2021 make a payment on account of £25,000 towards the Claimant’s costs.
8. There shall be a detailed assessment of the Claimant’s publicly funded costs.
9. The Defendant’s application for permission to appeal is refused the court not being satisfied that the proposed appeal has a real prospect of success or that there is some other reason why an appeal should be heard.
10. Any Notice of Appeal must include an application to the Court of Appeal for expedition of the appeal and must be filed with the Court of Appeal and served by 16:00 on Monday 21 June 2021.
11. The Defendant’s application for a stay of execution of the order in para 7 above for a payment on account of costs is refused.
Dated 9 June 2021
