Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2023-004907
UI-2023-004908
UI-2023-004909

First-tier Tribunal Nos: EA/10092/2022, EA/10094/2022 & EA/10095/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 31 December 2024

Before

UPPER TRIBUNAL JUDGE HOFFMAN

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

PAOLA BELEN JIMENEZ CARRION
KATYE AGUIRRE JIMINEZ
HOOVER FRANCISCO AGUIRRE AGUILAR
(NO ANONYMITY ORDER MADE)
Respondents

Considered on the papers on 19 December 2024

DECISION AND REASONS
Introduction
1. I will refer to the parties as they were before the First-tier Tribunal even though it is the Secretary of State who is the appellant before the Upper Tribunal.
2. The respondent appeals with permission against the decision of First-tier Tribunal Judge Buckwell (“the judge”) promulgated on 6 March 2023. In that decision, the judge allowed the appellants’ appeals against the respondent’s decisions dated 11 October 2022 refusing their applications for leave to remain under the EU Settlement Scheme (“EUSS”) as set out in Appendix EU of the Immigration Rules (“the Rules”).
Background
3. The appellants are citizens of Ecuador. The first and third appellants are married; the second appellant is their minor daughter. On 10 March 2022, the first appellant applied for leave under the EUSS as the Zambrano carer of her second child, Emily, who was granted British citizenship on 9 March 2015, with the second and third appellants as her dependants.
4. However, in her decisions dated 11 October 2022, the respondent refused the appellants’ applications on the basis that the first appellant could not demonstrate that she was a person with a Zambrano right to reside during the relevant qualifying period, which must have begun prior to the specified date (2300 GMT on 31 December 2020). The respondent noted that the continuous qualifying period would have begun on 9 March 2015, the date Emily acquired British citizenship. However, the first appellant did not have a Zambrano right to reside under the Immigration (European Economic Area) Regulations (“the EEA Regulations”) throughout the qualifying period. That was because between 27 November 2015 and 17 May 2018, the first appellant had been granted leave to remain outside of the Rules; and on 22 August 2019 she had been granted leave to remain on family life grounds under Appendix FM of the Rules.
The appeals before the First-tier Tribunal
5. The appellants exercised their rights of appeal against the respondent’s decisions in accordance with the Immigration (Citizens’ Rights Appeals) Regulations 2020 (“the 2020 Regulations”). Their appeals were heard by the judge on 15 February 2023. In a decision promulgated on 6 March 2023, the judge allowed the appellant’s appeals. In doing so, the judge relied on the Court of Appeal’s judgment in Akinsanya v Secretary of State for the Home Department [2022] EWCA Civ 37. The judge’s findings are set out at [28]:
“In response to the assertions and having taken careful note of the covering letter submitted by Thoree & Co when the applications were made, the assertions on behalf of the Appellant are that the Respondent incorrectly applied the terms of Regulation 16 [of the EEA Regulations]. In Akinsanya (above) the Court of Appeal recognised that Regulation 16 did exclude applications on the basis of Zambrano by those who held indefinite leave to remain under the Immigration Rules. However, it was found that the Respondent had not correctly understood the terms of Regulation 16 because applicants who held only limited leave under the Immigration Rules could still establish an entitlement to leave as persons with Zambrano rights to reside.”
The respondent’s appeal to the Upper Tribunal
6. The respondent applied for permission to appeal the decision of the First-tier Tribunal on the basis that the judge had exceeded his statutory jurisdiction because, under the 2020 Regulations, the grounds of appeal were limited to whether the decision was not in accordance with the Rules. Rather than taking into account the fact that the appellants could not meet the requirements of the Appendix EU, the respondent argues that the judge made a material error of law in accepting the appellants’ argument that what was relevant was that they were not exempt individuals for the purposes of regulation 16 of the EEA Regulations. The respondent further relies on the Court of Appeal’s conclusions in Akinsanya and Velaj v Secretary of State for the Home Department [2022] EWCA Civ 767 that the Zambrano right is one of last resort; and that Appendix EU continued to exclude applicants who held a form of leave other than that as a Zambrano carer at the specified date.
7. Permission to appeal was granted by First-tier Tribunal Judge J M Dixon on 19 April 2023.
8. On 11 December 2023, Upper Tribunal Judge Stephen Smith issued directions in which he expressed his preliminary view that the respondent’s grounds of appeal were compelling and that the decision of the First-tier Tribunal should be set aside and substituted with a decision dismissing the appellants’ appeals. He made a direction that unless the appellants provided a written objection within 10 working days, the Upper Tribunal would consider whether to proceed to determine the respondent’s appeal and remake the decision by dismissing the appeals, without an oral hearing. The appellants did not make any written objections in response to those directions.
9. I am therefore satisfied that it would be in accordance with the overriding objective for this appeal to now be determined on the papers.
The relevant Immigration Rules
10. On the date of application, paragraph EU11 of Appendix EU said as follows:
“EU11. The applicant meets the eligibility requirements for indefinite leave to enter or remain as a relevant EEA citizen or their family member (or as a person with a derivative right to reside or a person with a Zambrano right to reside) where the Secretary of State is satisfied, including (where applicable) by the required evidence of family relationship, that, at the date of application and in an application made by the required date, one of conditions 1 to 7 set out in the following table is met:

[…]

3. (a) The applicant:
[…]
(v) is a person with a Zambrano right to reside; or
(vi) is a person who had a derivative or Zambrano right to reside; and
(b) The applicant has completed a continuous qualifying period of five years in any (or any combination) of those categories; and
(c) Since then no supervening event has occurred” [Bold as in the original]
11. A “person with a Zambrano right to reside” was defined under Annex 1 in the following way:
“a person who has satisfied the Secretary of State, including (where applicable) by the required evidence of family relationship, that, by the specified date [i.e. 2300 GMT on 31 December 2020], they are (and for the relevant period have been), or (as the case may be) for the relevant period in which they rely on having been a person with a Zambrano right to reside (before they then became a person who had a derivative or Zambrano right to reside) they were:

(a) resident for a continuous qualifying period in the UK with a derivative right to reside by virtue of regulation 16(1) of the EEA Regulations, by satisfying:
(i) the criterion in paragraph (1)(a) of that regulation; and
(ii) the criteria in:
(aa) paragraph (5) of regulation 16 of the EEA Regulations; or
(bb) paragraph (6) of that regulation where that person’s primary carer is, or (as the case may be) was, entitled to a derivative right to reside in the UK under paragraph (5), regardless (where the person was previously granted limited leave to enter or remain under paragraph EU3 of this Appendix as a person with a Zambrano right to reside and was under the age of 18 years at the date of application for that leave) of whether, in respect of the criterion in regulation 16(6)(a) of the EEA Regulations, they are, or (as the case may be) were, under the age of 18 years; and
(b) without leave to enter or remain in the UK, unless this was granted under this Appendix” [Underling added]
Findings – Error of Law & Remaking
12. For the reasons given by the respondent in her grounds of appeal, I am satisfied that the judge did make a material error of law in allowing the appellants’ appeals.
13. The judge’s findings were based entirely on a misunderstanding of the Court of Appeal’s judgment in Akinsanya. The judge appeared to find that because the first appellant would not have been exempt from obtaining a derivative right of residence under regulation 16 of the EEA Regulations that she was likewise not exempt from obtaining leave to remain as a Zambrano carer under Appendix EU of the Rules because she had limited rather than indefinite leave to remain. However, in Sonkor (Zambrano and non-EUSS leave) [2023] UKUT 276 (IAC), the Upper Tribunal made the following findings as summarised in its headnote:
“1. The EU Settlement Scheme (“EUSS”) makes limited provision for certain Ruiz Zambrano v Office National de l'Emploi [2011] Imm AR 521 carers to be entitled to leave to remain, as a matter of domestic law.

2. A Zambrano applicant under the EUSS who holds non-EUSS limited or indefinite leave to remain at the relevant date is incapable of being a “person with a Zambrano right to reside”, pursuant to the definition of that term in Annex 1 to Appendix EU of the Immigration Rules.

3. Nothing in R (Akinsanya) v Secretary of State for the Home Department [2022] 2 WLR 681, [2022] EWCA Civ 37 calls for a different approach.”
14. As the Upper Tribunal noted in Sonkor at [13], the Court of Appeal in Akinsanya did not find paragraph (b) of the definition of a “person with a Zambrano right to reside” to be unlawful. Therefore, contrary to what the judge appeared to believe, the findings in Akinsanya did little to advance the appellants’ case. I am satisfied that the subsequent judgment of the High Court in Akinsanya v Secretary of State for the Home Department [2024] EWHC 469 (Admin) does not change that.
15. Consequently, in reaching his decision, the judge made a material error of law by failing to take into account the fact that the first appellant did hold leave to enter or remain in the UK that was not granted under Appendix EU and, consequently, she failed to meet paragraph (b) of the definition of a “person with a Zambrano right to reside” under the Rules. In circumstances where the appellants did not seek to argue that the respondent’s decisions breached any right which they had under the withdrawal agreement, the only remaining ground of appeal open to them before the First-tier Tribunal was that the decisions were not in accordance with the Rules: see regulation 8 of the 2020 Regulations. However, for the reason already explained, the respondent’s decision was plainly in accordance with the requirements of Appendix EU.
16. For these reasons, I allow the respondent’s appeal.
17. I now turn to remake the decision. Based on the facts, it is clear that there can be only one outcome. As explained above, the first appellant did not meet the definition of a “person with a Zambrano right of residence” for the purposes of Appendix EU and, consequently, the respondent’s decision to refuse her application, as well as those of her dependents, was in accordance with the provision of the Rules by virtue of which it was made.
Notice of Decision
The decision of the First-tier Tribunal involved the making of material errors of law.
The decision of the First-tier Tribunal is set aside.
I re-make the decision in the appeals by dismissing them under the Immigration Rules.

M R Hoffman

Judge of the Upper Tribunal
Immigration and Asylum Chamber

19th December 2024