Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2023-003384
First Tier Tribunal No: EA/08109/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 27 February 2026

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Perpetual Adams
(no anonymity order made)
Respondent

Representation:

For the Appellant: Mr E. Terrell, Senior Home Office Presenting Officer
For the Respondent: Mr D. Balroop, Counsel instructed by Ronik Solicitors

Heard at Field House on 4 October 2023

DECISION AND REASONS
1. The Respondent is a national of Ghana born on the 14th May 1973. On the 27th January 2023 the First-tier Tribunal (Judge C. Fern) allowed her EUSS appeal. The Secretary of State now has permission to appeal against that decision.
2. The appeal was heard at Field House on the 4th October 2023 when both Mr Terrell and Mr Balroop made very helpful submissions and I reserved my decision. The delay that has followed has been caused by an administrative error of entirely my making and for that the parties have my sincere apologies.

Background and Matters in Issue
3. The central facts in this case are uncontentious. They are that the Respondent is a single parent carer for her 12 year-old daughter, who lives with her in Surrey. Her daughter is a British citizen. It further appears to be accepted that if the Respondent were to leave the United Kingdom, her daughter would have to leave with her.
4. The question is whether those facts give the Respondent any entitlement in law to remain in the United Kingdom under the European Union Settlement Scheme (EUSS).
5. The Respondent made her application as ‘a person with a Zambrano right to reside’ on the 2nd of August 2021. This was refused on the 1st of August 2022. The Secretary of State considered the application against the definition set out in Annex 1, Appendix EU of the immigration rules, and found that the Respondent could not meet two of them:
i) The Respondent first had to show that the continuous period in which she has been residing in the United Kingdom as a ‘person with a Zambrano right to reside’ had begun prior to 23.00 GMT on the 31st December 2000; this she could not do since her daughter had not acquired British citizenship until the 21st June 2011;
ii) The Respondent further had to show that she was not entitled to any other form of leave, that is to say leave arising outwith the Immigration (European Economic Area) Regulations 2016 or Appendix EU. This she could not do because the Secretary of State had made two successive grants of discretionary leave on Article 8 grounds, between 2017 and 2019, and again between 2020-2022.
6. When the matter came before the First-tier Tribunal, it noted the first of these reasons at it's paragraph 3, but thereafter said no more about it. As for reason (ii), the Tribunal rightly identified this point to have been the matter in dispute before the Court of Appeal in the case of Akinsanya v SSHD [2022] EWCA Civ 37. Although Annex 1 to Appendix EU clearly did require that no other form of leave be held by a Zambrano applicant, this had to be read in light of what the Court of Appeal had to say about the operative law. Applying the findings in Akinsanya the Tribunal held that the appeal should be allowed, notwithstanding that the Respondent had limited leave to remain at the date of decision.
7. The Secretary of State was granted permission to appeal on the 1st of August 2023 on the following grounds:
1. The Judge of the First-tier Tribunal has made a material error of law in the Determination. Judge Fern has failed to observe the boundaries of the available statutory ground in this appeal under the Citizens’ Rights Appeals Regulations 2020, instead embarking on an exercise drawing on a wrong interpretation of the outcome of the litigation in Akinsanya with inappropriate reference to the Immigration (EEA) regulations 2016 and the significance of holding limited leave to remain on another basis.
2. Given that Zambrano derivative rights could not found any rights under the Withdrawal Agreement, the appeal could only succeed if the decision was not in accordance with Scheme rules. This ground was manifestly not made out as it is a matter of unassailable fact that contrary to the requirements to be a Person with a Zambrano Right to Reside as defined in Appendix 1 to Appendix EU, Ms Adams had leave to remain (duration irrelevant) both at the specified date (11pm on 31 December 2020) and on the date of her application under EUSS.
3. Judge Fern has instead imported concepts from the litigation in Akinsanya and applied inappropriate additional meanings to the question of having a Zambrano right under the Regulations. These were addressed in a different context by Mostyn J in the Administrative Court in a judgment which the Secretary of State unsuccessfully appealed, but on review the EUSS rule framework was not amended in the light of the Court of Appeal’s decision on the Secretary of State’s successful “right of last resort” ground as illuminated further in Velaj. Judge Fern has thus effectively applied a different rule from the real one.

Error of Law
8. Notwithstanding the baffling way in which the Secretary of State’s decision, the grounds of appeal and the rules themselves are framed, there is at the heart of this appeal a simple point.
9. The Respondent was required to demonstrate that for a continuous qualifying period of five years she met the definition of ‘a person with a Zambrano right to reside’ as it is defined in Annex 1 of Appendix EU. These included the proviso that she did not, at any time during that period, have leave to enter or remain in the UK that was not granted under Appendix EU. Since she did in fact have such ‘prohibited’ periods of leave, having been granted leave to remain on Article 8 grounds between the 5th January 2017 and the 5th July 2019 and then again from 14th July 220 to the 23rd April 2022, the application was refused. She had that ‘prohibited’ leave at the date of the application, and by virtue of section 3C of the Immigration Act 1971, still had it at the date of the decision, and indeed the appeal.
10. The First-tier Tribunal understood that to be the case, but nevertheless allowed the appeal on the grounds that Appendix EU was inconsistent with the Court of Appeal decision in Akinsanya:
“27. In Akinsanya, the Court of Appeal, ruling on a factual scenario similar to that present in this case, found that the Respondent was not correct in excluding a person in the Appellant’s position, i.e., with limited leave to remain, from the definition. The Respondent was found to have misconstrued relevant parts of Regulation 16, EEA Regulations 2016 as excluding from Zambrano rights those holding limited leave to remain when the regulation on its face excluded only those with indefinite leave to remain.
28. The “derivative right” in Annex 1 is defined therein by Regulation 16 of the EEA Regulations 2016, which at Paragraph (7)(iv) exempts explicitly from Zambrano treatment a person who has indefinite leave to remain, but not one with limited leave to remain.
29. Lord Justice Underhill made the following comments in Akinsanya, suggesting that the Respondent might wish to amend the definitions in Annex 1.
• Par. 57: “… if at any time a Zambrano carer loses their right to reside as a matter of domestic law, the Zambrano right will arise (assuming, that is, that the effect of the carer leaving will be that the EU citizen child also has to do so)….”
• Par. 60, quoting this Home Office Guidance to UK Border Agency Staff at the time of the 2012 Amendments, “Where someone has limited leave (and so is not listed as one of the exempt categories above) and can demonstrate they meet all other requirements of Regulation 15A, then they can acquire a derivative right of residence.”
• Par. 65: “It may be that the Secretary of State took the view [in Regulation 16] that allowing a Zambrano right to reside to those who already had limited leave to remain was more straightforward …..”
30. The decision in Akinsanya was handed down on 25 January 2022, after the Appellant’s application made August 2021 and prior to the RFRL issued August 2022. It made clear that Regulation 16 excluded those with indefinite leave to remain, but not persons with limited leave to remain, from Zambrano.
31. Against this, Mr. Iqbal points to the later issued Home Office Guidance, Page 19, dated December 2022. That states in material part: “the Court of Appeal found that, as a matter of EU law, a Zambrano right to reside does not arise where a person holds leave to remain.”
32. Plainly, the Guidance differs materially from Akinsanya. The Guidance is not law, but rather a statement of policy.
33. It is my view that the Appellant has met the definition of a Zambrano carer as set forth in Akinsanya. Accordingly, I allow this appeal.
11. The difficulty with this approach was this. The right of appeal in this case arises under Regulation 3(c) of the Immigration Citizens’ Rights Appeals (EU Exit Regulations 2020, because it is an appeal against a decision made by virtue of the residence scheme immigration rules ie Appendix EU. Regulation 8 of those Regulations sets out the available grounds of appeal. The first ground of appeal is that the decision breaches a right the appellant has by virtue of the Withdrawal Agreement. Zambrano carers are squarely outwith the terms of the Withdrawal Agreement, so that ground was not available to the Respondent. Regulation 8(3) provides that the second ground of appeal is that the decision is not in accordance with scheme rules. That is the ground upon which the Respondent’s case was founded.
12. As I allude to above, the scheme rules require the applicant to have had a continuous period of five years leave in which she meets the definition in Annex 1, which stipulates that she cannot have had any leave in another capacity. The Judge of the First-tier Tribunal purported to overlook this by reference to the decision in Akinsanya, but that was misconceived for the reasons explained in SSHD v Sylvia Sonkor [2023] UKUT 00276 (IAC):
12. Mr Appiah sought to rely on the Court of Appeal's judgment in Akinsanya as authority for the proposition that the Secretary of State had misunderstood the import of the 2016 Regulations and their relationship with the EUSS on matters relating to Zambrano when framing the rules, and when taking the decision under challenge in these proceedings. He submitted that Mr Deller had merely invited us to adopt the same erroneous understanding of the EUSS as the Secretary of State had in Akinsanya . See para. 8 of his skeleton argument:
"It is respectfully submitted that it is difficult to see how the approach to the present appeal cannot follow the conclusions of Court of Appeal which found that the Respondent erred in law in [her] approach and that (contrary to Home Office policy) a primary carer of a UK citizen child may have a Zambrano right to reside even where they are entitled to limited leave to remain on another basis."
13. The difficulty with that submission is that Akinsanya concerned the disparity between the Secretary of State's understanding of the 2016 Regulations and the effect of Appendix EU, insofar as each concerned Zambrano carers holding some form of existing, non-EUSS leave to remain. Whereas regulation 16(7) of the 2016 Regulations prevented a person with indefinite leave to remain from enjoying a right to reside as a Zambrano carer (thereby entitling putative Zambrano carers with limited leave to remain to be granted a right to reside on Zambrano grounds under those Regulations), paragraph (b) of the Annex 1 definition of a Zambrano carer carved out holders of limited, as well as indefinite, leave to remain from the scope of the EUSS Zambrano provisions. What Akinsanya did not do was find the paragraph (b) requirement in the Annex 1 definition of a "person with a Zambrano right to reside…" to be unlawful. The Court did not quash the rule and declined to be drawn into a discussion as to whether the Secretary of State had misdirected herself in framing the EUSS. That depended on what the Secretary of State was intending to achieve, the Court held. There were any number of reasons why the Secretary of State may have wanted to adopt a different approach: see para. 57.
14. We have emboldened the words in the definition of a "Zambrano right to reside" at para. 9 since they lie at the heart of our operative analysis. The appellant held leave granted under Appendix FM at the time of her EUSS application. She continues to hold leave in that capacity, pursuant to section 3C of the 1971 Act. In his written and oral submissions before us, Mr Deller relied on the barrier to the appellant succeeding established by paragraph (b) in the Annex 1 definition. We agree that paragraph (b) is dispositive of these proceedings against the appellant. Since the appellant held leave under Appendix FM at the time of her application (and, extended by section 3C, at the date of the appeal before us), she is unable to be a person who meets the definition of "Zambrano right to reside". She cannot satisfy the requirement that she does not hold leave to enter or remain granted under another part of the rules. By holding another form of leave, the appellant disqualified herself from being able to succeed as a Zambrano carer under Appendix EU. That is dispositive of all issues in this appeal.
15. Nothing in Akinsanya calls for a different approach; the Court of Appeal held that the 'Zambrano circumstances' were not engaged in relation to a person who holds existing leave to remain: see para. 48, and the preceding discussion.
13. Accordingly I find the Secretary of State’s appeal to be made out. The decision of the First-tier Tribunal must be set aside.
14. Mr Balroop sought to persuade me that notwithstanding the foregoing the Respondent should nevertheless succeed in her appeal because, in essence, it was unfair and disproportionate that Zambrano derivative rights of residence, as they should properly have been understood under Regulation 16 of the Immigration (European Economic Area) Regulations 2016, are restricted in the way that they now are in Appendix EU. To that end he prayed in aid Articles 5 and 18 of the Withdrawal Agreement. I am unable to accept that submission because, as I think is uncontroversial, Zambrano carers are outwith the scope of the Withdrawal Agreement, so nothing therein about proportionality or good faith can assist her.

Decisions
15. The Secretary of State’s appeal is allowed, and the decision of the First-tier Tribunal is set aside.
16. The decision in the appeal is re-made as follows: the appeal is dismissed.

Upper Tribunal Judge Bruce
Immigration and Asylum Chamber

16th December 2023