The Upper Tribunal has held that the Home Office guidance on Zambrano carers is wrong to require decision makers to assess whether a person may be able to make an application with a “realistic prospect” of succeeding under Appendix FM. This was the same conclusion reached by the High Court in the most recent round of the Akinsanya litigation, albeit that the Upper Tribunal reached their decision separately. This case is Maisiri (EUSS, Zambrano, ‘Realistic Prospect’ policy) [2024] UKUT 00235.

Background

Mr Maisiri is a Zimbabwean national who arrived in the UK on a visitor visa in 2004. He overstayed that visa and made an unsuccessful asylum claim in 2009. In 2021 he applied for pre-settled status under the EU Settlement Scheme as a Zambrano carer. In brief, this is where the primary carer of a British citizen living in the UK derived a right to reside under EU law if their removal from the UK would also compel the British citizen to leave the UK.

In the application the appellant stated that he was applying as joint primary carer, together with his unmarried partner Ms Joseph, of their British citizen daughter who was born on 9 October 2016. Ms Joseph has a registered disability and mental health issues and it was submitted that they were both “entirely dependent” on the appellant and if he was to be removed from the UK, they would both be forced to leave with him.

The application relied on the first Akinsanya decision by the High Court and argued that the requirements under Appendix EU were met. The application was refused on 18 January 2023. The Home Secretary did not accept that the appellant had a Zambrano right to reside because there was a “realistic prospect” of him being granted limited leave to remain under Appendix FM on application. This meant that in practice his daughter would not be required to leave the UK if his Appendix EU application was rejected. The case of Velaj v Secretary of State for the Home Department [2022] EWCA Civ 767 was relied on by the Home Secretary.

The First-tier Tribunal

The decision was appealed to the First-tier Tribunal which allowed the appeal. The hearing was not attended by anyone on behalf of the Home Secretary. The tribunal said that the appellant did not have a right to stay and the Home Secretary’s approach left him vulnerable to removal.

The tribunal also said that the drafting of Appendix EU did not support the Home Secretary’s argument and that “that understanding is supported by her decision to include specific exclusions for those with limited and indefinite leave but no such exclusion for an individual who could make an Article 8 application.” The tribunal found that the appellant did satisfy the requirements for a grant of limited leave under paragraph EU14.

The Home Secretary appealed to the Upper Tribunal on the grounds that the judge had misdirected herself on the relevance of the appellant’s ability to make an application under Appendix FM. This was “not a formal, procedural requirement” but part of the “detailed factual matrix” to be considered when applying the test in Appendix EU. The overriding point being made by the Home Office was that the appellant was less likely to face removal because of his strong ties to the UK. Permission was granted for the appeal.

The Upper Tribunal

The relevant part of the definition of a person with a Zambrano right to reside was that put in place on 9 November 2022 (although the application had been made before the definition was changed, there were no transitional provisions put in place for applications made earlier) is at (a)(iii) of the definition: “the British citizen would in practice be unable to reside in the UK, the European Economic Area or Switzerland if the person in fact left the UK for an indefinite period”.

The Home Office guidance “EU Settlement Scheme: person with a Zambrano right to reside” says that a decision maker “must consider whether, on the balance of probabilities, an applicant is likely to qualify for Appendix FM leave”. Another section of the guidance is titled “Considering the prospects of making a successful Appendix FM, private life or long residence application” and says that the assessment is not whether the person qualifies for leave but whether “there is a realistic prospect that they would do so”.

It was argued on behalf of the Home Secretary that the “obvious and rational meaning” of the question at (a)(iii) was that “it was necessary to consider whether the British citizen would be required to leave, which in turn necessitated consideration of whether their primary carer would be required to leave”. This then meant that it was necessary to consider whether an application under other immigration rules could be made, including Appendix FM. It was said to be “impermissible for a person to engineer a situation in which they benefitted from that right by deciding not to make an application under Appendix FM”. The existence of an alternative route was said to be not determinative of the question, but part of a holistic, fact sensitive approach.

In response, the appellant argued that the tribunal should consider the “natural and ordinary meaning of the immigration rules” (Mahad v FCO [2009] UKSC 16) and it was not possible to read the “realistic prospect” test from the guidance and relied on by the Home Secretary into the rules. Importantly, it was pointed out that the appellant did not in fact have a straightforward route available to him under the immigration rules as he would need to rely on exceptional circumstances in Appendix FM. A fee waiver may also have been necessary.

It was also pointed out on behalf of the appellant that as the Zambrano route under Appendix EU had been closed in August 2023 and so the appellant would be unable to apply for this again in future.

Between the hearing and the written decision, the latest decision in the Akinsanya litigation came out and the tribunal asked for written submissions to be made in light of that.  

The Upper Tribunal concluded that the “realistic prospect” test in the guidance and the Home Secretary’s submissions was incorrect for three reasons. The first was the point that the natural and ordinary meaning of the words used in the immigration rules did not support the argument.

Next, that the “approach was not supported by authority”. Here, the tribunal said that the determining factor in Velaj was that Mrs Velaj had said that she had no intention of leaving the UK with the children. The Home Secretary had not argued in that case that Mr Velaj should have made an application under Appendix FM or that his failure to do so was relevant. The tribunal said that nothing in Velaj or the other authorities supported the “realistic prospect” test.

Finally, the tribunal concluded that the “realistic prospect” test was “likely to be unfair and unworkable in practice” for applicants, decision makers and judges. The closure of the route was relevant as the tribunal said that the consequences of errors in this approach could mean that a person loses their right to leave as a Zambrano carer because a caseworker wrongly assessed the prospects of leave under Appendix FM.

The tribunal said that this is what had happened in this case, as the Home Secretary’s position on the appellant’s prospects appeared to be “straightforwardly wrong” for the reasons given by the appellant. The appellant did not meet the eligibility requirements for limited leave as a parent because he is in a relationship with his daughter’s mother. He did not meet the immigration status requirement for limited leave as a parent and so would need to establish insurmountable obstacles or unjustifiably harsh consequences in order to succeed in the application.

On the latest Akinsanya decision, the tribunal accepted the Home Office’s submission that it was not bound by the decision, however found no reason not to follow it on the “realistic prospect” point, given the tribunal had reached the same conclusion “albeit for slightly different reasons”.

Conclusion

The tribunal added a useful observation that “If a judge of the First-tier Tribunal is asked to dismiss the appeal of a Zambrano carer because there is a realistic prospect of them securing leave under Appendix FM, it strikes us that there is every reason not to dismiss the appeal on the basis of that possibility.” As explained above, this route has been closed for over a year now, so it is unclear how many people are still in this position.