Upper Tribunal stops Home Office resiling on a concession that the EUSS derivative rights rules were met

The Upper Tribunal found no error of law in a First-tier Tribunal decision that allowed an EU Settlement Scheme derivative rights appeal, following a Home Office concession that the Appendix EU rules were met. Appealing to the Upper Tribunal, the Home Office argued that the First-tier judge should not have allowed the appeal notwithstanding the concession telling them to do so. This submission was rejected by the Upper Tribunal finding there were no good reasons to allow the Home Office to resile from their concession, given it was determinative of the appeal being allowed.

The Upper Tribunal decision offers helpful analysis on Withdrawal Agreement derivative rights cases under Appendix EU. It also details relevant factors to decide whether to permit the withdrawal of a concession made during proceedings (applicable to all appeals, not just under Appendix EU). The case is MH (Appendix EU, withdrawal of concession) Albania [2025] UKUT 351 (IAC) . I will use EU as shorthand for EU/EEA/Swiss throughout.

Background facts

The appellant MH is the non-EU mother of an EU child (TV) with settled status under the EU Settlement Scheme. The child’s Italian father died in 2009 and since 2014 the child has lived in the UK, starting school in the same year. MH also has a British child and in 2018 married a British citizen. She received two grants of leave under Appendix FM as a parent, the first between 9 July 2016 and 8 January 2019 and the second between 14 August 2019 and 14 February 2022. This meant she held lawful status at the end of the transition period on 31 December 2020 (the specified date in Appendix EU language).

In June 2023 MH applied under Appendix EU based on derivative rights, as she argued she is the primary carer of an EU national child who enjoyed their free movement rights in the UK before the end of the transitional period. Crucial to establishing a derivative rights case was to show the EU child would be compelled to leave the UK if she as the primary carer left the UK indefinitely.

The Home Office refused the application relying on her grant of Appendix FM to argue “that [TV] would not have been in practice be compelled to leave the UK if you were required to leave the UK for an indefinite period”. It was also suggested that TV would not be compelled to leave the UK if the appellant did, on the basis that he could remain with her husband (his stepfather). 

Following the refusal and appeal to the Tribunal (which involved several case management hearings to narrow the issues to be resolved), it emerged that the appellant had reported to the police that she was raped by her husband on 19 October 2024. Although this information post-dated the EU Settlement Scheme application, it did form part of the evidence in the appeal hearing. The judge invited the Home Office to consider their position that TV could remain with the appellant’s husband / his stepfather. The Home Office agreed this argument was no longer appropriate.

It was also agreed that TV was self-sufficient during the relevant period. This left the focus of the appeal solely on the impact of the grants of Appendix FM leave. At this point the Home Office conceded that the Appendix EU rules were met on the appellant’s facts, but rather than withdraw the refusal decision and issue a new decision, the Home Office suggested that “it would be quicker for me [the judge] to determine the matter”. The First-Tier Tribunal allowed the appeal and the Home Office duly applied for permission to appeal, on the basis that the judge misapplied the Appendix EU requirements in accepting the concession.

Derivative rights under the Withdrawal Agreement

Anyone familiar with the extensive litigation on Zambrano carers, will be aware that holding non-Appendix EU leave on 31 December 2020 is fatal to an EU Settlement Scheme application. This is because the Appendix EU definition of a Zambrano carer explicitly excludes persons who hold leave at the specified date. Zambrano carers are of course not protected by the Withdrawal Agreement, whereas the primary carers of an EU national child or children in education may well fall to be protected.

The Upper Tribunal observed that under Annex 1 definition of a person with a derivative right to reside, neither category (a) or category (b) adopts the same approach as with Zambrano carers, as there is no express exclusion of persons holding another form of leave.

For reference, category (a) are Chen cases that apply to primary carers of self-sufficient EU children, and category (b) covers Ibrahim and Teixeira cases which cover the children (of any nationality) of EU nationals who used to work or be self-employed in the UK, if the children are in education. Category (c), which is not mentioned by the Upper Tribunal, relates to the primary cares of Ibrahim and Teixeira children under category (b). Category (c) equally does not exclude an applicant on the basis that they hold another form of leave. In this case TV is an EU national and was accepted as being self-sufficient, meaning that the appellant was applying under category (a).

Understandably, the Upper Tribunal found that the difference in treatment of Zambrano carers compared to Withdrawal Agreement derivative rights cases must be intentional:

We therefore agree with Mr Holmes’ submission that if the draftsperson had been minded to exclude people like the appellant as a person with a derivative right to reside exclusively because they held different forms of leave, this could have been easily achieved, as it had in other parts of the rules. The fact that there is not such an exclusion in categories (a) and (b) can only mean that other forms of leave were not intended to shut out those, like the appellant, who had, and continued to have at the specified date, a different form of leave.

It appears that following this conclusion, the Home Office position shifted away from arguing a grant of leave at the specified date was terminal to success under Appendix EU, to arguing that the grants of leave made to MH were “significant factors which ought to have been considered in assessing whether the compulsion test was satisfied”.

The compulsion test

The compulsion test relates to whether the self-sufficient EU national or child in education will in fact leave the UK if their primary carer leaves for an indefinite period. If the child will not leave the UK even if the primary carer does, there can be no derived right of residence.

There is significant case law on the compulsion test, with Velaj v Secretary of State for the Home Department [2022] EWCA Civ 767 confirming there must be a realistic prospect, rather than a hypothetical proposition, that child will leave the UK if their primary carer leaves indefinitely (see write up here). Obviously, this assessment is an “intensely fact-specific exercise” and in terms how a grant of non-EU Settlement Scheme leave might affect the compulsion test, Velaj helpfully points out:

…the immigration status of a person with limited leave to remain is precarious; leave is likely to be subject to conditions and it is liable to be withdrawn or truncated. It is possible to conceive of situations in which the conditions attached to a limited leave to remain are such as to make it impossible in practice for the primary carer to remain in the UK and look after the child.

As well as considering the impact of the appellant holding an immigration status on 31 December 2020, the First-tier Tribunal also addressed the very significant factual issues relating to the reported rape. These facts arose after the EU Settlement Scheme application was made and therefore consideration was given to whether post-application facts could influence the compulsion test.

Although the Appendix EU rules look at eligibility based on the date of application (with reference to the position on 31 December 2020) and are thus inherently backwards looking, the decision notes that Tribunals, “where appropriate, may take into account evidence post-dating the refusal decision”. The Upper Tribunal referred to Elais (fairness and extended family members) [2022] UKUT 300 (IAC), which demonstrated that a post-transition period marriage was an important factual consideration, in terms of retrospectively assessing whether the couple were in a durable partnership on 31 December 2020.

Applying the compulsion test to the facts of the appeal, the Upper Tribunal observed that although it is “a demanding and high threshold which is not easily reached”, there was ample scope for the judge in the First-tier to find either way on whether the threshold was satisfied. As such, the Home Office concession that the Appendix EU rules were met took on particular significance.

Withdrawing concessions

The Upper Tribunal observed that when looking at concessions, it is important to recognise the recent “procedural sea change” in the immigration and asylum jurisdiction. This referred to the obligations on the parties to define and narrow the issues in dispute in appeals. If the correct approach is followed, the party offering a concession will have thoroughly evaluated that it is indeed the correct position to take. In other words, it is not for the judge to investigate if a concession is correctly offered:

In circumstances where a wholesale concession results in the appeal succeeding, the tribunal is entitled to place its trust in the respondent that it has fully considered the facts and relevant legal principles before taking a step which results in the disposal of the appeal.

With this context in mind, the Upper Tribunal sets out the case law on concessions and the circumstances where they may be resiled from. This analysis is consolidated in the judgment’s headnote at point three, which sets out eight non-exhaustive factors to consider.

It is evident that the giving and then withdrawing of concessions creates a significant risk of unjust outcomes. Therefore, attempts by the Home Office to withdraw concessions should be treated sceptically and are likely to fail unless good reasons can be shown. Although there needs to be strong grounds to allow a concession to be withdrawn, the Upper Tribunal is clear that concessions leading to outcomes which are demonstrably incorrect in law are likely to meet this requirement, for example “where a concession has resulted in a manifestly incorrect interpretation of the relevant Immigration Rules”.

Applying these principles to the Home Office’s attempt to withdraw the concession in this case, the Upper Tribunal emphatically rejected the submission that there were good reasons to allow this. It observed the decision to offer the concession, “cannot be regarded as a hasty or ill-informed decision. It was taken after multiple case management reviews where the legal principles were fully ventilated and came after discussion on the day with a Senior Caseworker”.

There were no errors of law with regards the interpretation the Appendix EU rules contained in the concession, as it had been established the existence of Appendix FM leave at the specified date could not of itself preclude the appellant from satisfying the derivative right conditions. Therefore, the concession was one of fact rather than of law and so it would create “significant prejudice to the appellant if the respondent were permitted to withdraw the concession”. As such, the concession that the appellant met the Appendix EU rules and the First-tier agreement contained no error of law.

Conclusion

The distinction between Withdrawal Agreement derivative right cases and Zambrano cases is important, as holding another immigration status at the specified date is only fatal to the latter, not the former. This means there could be carers of EU children and children of former EU workers or self-employed persons, who are in education (and their carers) who have yet to apply to the EU Settlement Scheme, because they are unaware that their existing (or formerly held) leave does not preclude them from doing so.

This is not to say that they are guaranteed success should they apply to the EU Settlement Scheme, as holding immigration status at the specified date will be a key consideration in the factual inquiry on whether the child would be compelled to leave the UK. But given the cost of making repeated Appendix FM (or other) applications and the possibility of a ten-year route to settlement rather than the five under the EU Settlement Scheme, it seems very sensible to explore the possibility of applying under the EU Settlement Scheme.

It is also noteworthy that in most of these derivative rights cases, the applicant will have now completed the five-year qualifying period for settled status, given the derivative rights must have existed on 31 December 2020.