Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2023-005270;
UI-2023-005271

First-tier Tribunal No: EA/10961/2022; EA/10984/2022

THE IMMIGRATION ACTS

Decision and Directions Issued:
On 23th of September 2024

Before

UPPER TRIBUNAL JUDGE SMITH

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
And

(1) NATALIA PIVNENKO
(2) VOLDYMYR ALTUKHOV
Respondents

Representation:
For the Appellant: Mr T Melvin, Senior Home Office Presenting Officer
For the Respondent: Mr A Chakmakjian, Counsel instructed by David A Grand solicitors

Heard at Field House on Thursday 22 August 2024

DECISION
1. This is an appeal by the Secretary of State. For ease of reference, I refer to the parties as they were before the First-tier Tribunal. The Respondent appeals against a decision of First-tier Tribunal Judge Andrew Davies promulgated 28 September 2023 (“the Decision”), allowing the Appellant’s appeal against the Respondent’s decision dated 25 February 2022 refusing them status under the EU Settlement Scheme (“EUSS”).
2. The facts of these appeals so far as relevant can be shortly stated. The Appellants are Ukrainian nationals who are the parents of a son, born 25 February 2005 who was naturalised as a British citizen on 7 March 2016. They have another child, a daughter, but her position is not relied upon in these appeals, and I have no further information about her.
3. The Appellants’ son was, as at the date of their application under the EUSS sent on 24 February 2022, a child. The Appellants relied in their application on their rights as the “Zambrano carers” of that child. However, prior to making the application under the EUSS, they had, on 3 February 2022 made an application to remain on Article 8 grounds under Appendix FM to the Immigration Rules (“Appendix FM”). That application was granted by the Respondent on 8 February 2022. They were granted 30 months’ leave on a ten-year route. As such, at the date of the application under EUSS they had leave to remain which the Respondent says is fatal to their application under EUSS.
4. I add that although the leave granted on 8 February 2022, has now expired (as I understand it at the beginning of August 2024), I was told that the Appellants have applied to extend that leave. As such, whatever the outcome of these appeals, the Appellants will continue to have lawful status to remain in the UK.
5. The Respondent refused the application applying the Immigration Rules relevant to the EUSS (“Appendix EU”). However, the Respondent concluded that the Appellants could not meet the requirements of either paragraph EU11 (for settled status) or paragraph EU14 (for pre-settled status) because they were unable to meet the definition of “a person with a Zambrano right to reside” which is to be found in Annex 1 to Appendix EU. The Respondent did not consider whether the Appellants could meet the definition of a “person who had a derivative or Zambrano right to reside” also to be found in Annex 1. That definition may be relevant as the Appellants rely on that as a fall-back.
6. Judge Davies found that the Appellants had acquired a right to reside as “Zambrano carers” from 7 March 2016 when their son was registered as a British citizen ([15] of the Decision). That right continued as at 31 December 2020 ([16]). He found therefore that they had spent five years as “Zambrano carers” by 6 March 2021 ([17]). He found as a result that they had a “Zambrano right to remain before either applying under Appendix FM or making the application which is the subject of this appeal” ([17]). According to the Judge, they had therefore already qualified by the time that they made the application for leave to remain under Appendix FM and the grant of leave under that appendix “did not play a part in their continuous qualifying period” ([18]). He therefore concluded that condition 3 of paragraph EU11 was met. He said in terms that “the wording of the condition does not require the appellants to have been residing as Zambrano carers at the time of their (EUSS) application” ([20]). That analysis turned on the wording which included the word “had” and only requires the “continuous qualifying period” of five years to be completed previously. He also found that the Respondent was not entitled to rely on the Appendix FM application or grant of leave thereunder as being “a supervening event”.
7. At [22] of the Decision, the Judge distinguished the case of Akinsanya v Secretary of State for the Home Department [2022] EWCA Civ 37 (“Akinsanya 1”). He concluded that these cases were different from that of Akinsanya because the Appellants “had already achieved Zambrano rights”.
8. The Respondent in her grounds of appeal submitted that the Judge erred by failing to note that the Appellants had to satisfy the relevant condition as at the date of application under both paragraphs EU11 and EU14.
9. Permission to appeal was refused on that ground by First-tier Tribunal Judge Lodato on 7 November 2023 in the following terms:

“… 2. The sole ground of appeal is that the judge misinterpreted the provisions of Appendix EU. It is argued that he had no power to allow the appeal because the grant of leave to remain under Appendix FM disqualified the appellants from falling within the definition of Zambrano carers. I consider the grounds to be without arguable merit. The judge adopted a natural and well-reasoned interpretation of the plain words of the rules and took into account the ratio of the Court of Appeal in Akinsanya v SSHD [2022] EWCA Civ 37 which tended to support his analysis that there was a distinction to be drawn between those granted limited leave to remain under Appendix FM, like the appellants in this appeal, and those granted indefinite leave to remain. His finding that the rules did not bite once the 5-year threshold had already been reached in the capacity as Zambrano carers when the Appendix FM application was made is not arguably wrong in law. This interpretation of the rules was open to the judge. I do not consider the grounds of appeal to be arguable.”
10. The Respondent renewed her application for permission to appeal to this Tribunal on the basis that “[t]he Judge of the First-tier Tribunal has erred in introducing unnecessary complications into the simple question to be decided of whether the requirements of Appendix EU for Persons with a Zambrano Right to Reside were met at the date of the Appellants’ EUSS applications as per EU11 and 14”. The grounds went on to explain why the Judge’s analysis could not stand.
11. Permission to appeal was granted by Upper Tribunal Judge Norton-Taylor for the following reasons so far as relevant:

“… 6. As I read the judge’s decision, he concluded that the appellants had acquired a Zambrano right of residence by virtue of a period of residence in this country from 7 March 2016 until 6 March 2021 (which included the specified date of 31 December 2020): [15]-[17]. The fact that the appellants had leave under Appendix FM by the time they made the Appendix EU application was effectively beside the point: [20]. In other words, the relevant qualifying period was made up of a historical block of time which was not negated by the later event of the Appendix FM leave.
7. The respondent asserts in his grounds of appeal that the fact of having Appendix FM leave as at the time of making the Appendix EU application was ‘fatal’ to the appellants’ case on appeal.
8. I am bound to say that the correct legal position is less than clear to me. The appellants’ First-tier Tribunal skeleton argument appears to have made meritorious points, which the judge accepted. [17]-[22] of the skeleton argument. However, the challenge put forward by the respondent is arguable on the basis that the author of the grounds is assumed to have applied their mind to the relevant provisions of Appendix EU when drafting them.
9. The respondent must now give very careful consideration to the merits of his case. If, on reflection, it is concluded that the grounds are misconceived, this must be communicated to the Upper Tribunal and the appellants as soon as possible. With this in mind, I make the following specific direction (this must be complied with in addition to the standard directions).”
The Judge thereafter directed that the Respondent must confirm in writing that the appeal was to be pursued.
12. In response to the direction made by Judge Norton-Taylor, the Respondent filed a position statement dated 2 July 2024. She there confirmed that she intended to pursue the appeal on the basis that her position was supported by case-law. She relied in particular on the guidance given by this Tribunal in Sonkor (Zambrano and non-EUSS leave) Ghana [2023] UKUT 276 (IAC) (“Sonkor”) and the judgment of Eyre J in R (on the application of Akinsanya and another v Secretary of State for the Home Department [2024] EWHC 469 (Admin) (“Akinsanya 2”).
13. In addition to the Respondent’s position statement, I received detailed written submissions from Mr Chakmakjian dated 15 August 2024 seeking to uphold the Decision. I also had a bundle of documents running to 189 pages (pdf) which contains the documents relevant to the facts as set out above. However, since none of those facts are disputed, I do not need to refer to that bundle. The hearing before me proceeded on the basis of submissions on the law only.
14. The matter comes before me to determine whether there is an error of law in the Decision. If I conclude that there is, I then have to decide whether to set aside the Decision in consequence. If I set aside the Decision, I then either have to re-make the decision or remit the appeal to the First-tier Tribunal to do so.
15. In this case, the parties were agreed that whatever conclusion I reached on error of law would be determinative of the appeals. As a matter of construction of the Immigration Rules, which is a matter for the Tribunal and not what the parties would like the rules to say, there can be only one correct answer. If I conclude that the outcome of the analysis is as Judge Davies found it to be, then, even if the route by which he reached his conclusion contained any errors or were not explained by express reference to Appendix EU, the Decision could stand as any error would not be material. Conversely, if the outcome is incorrect, then the interpretation would be determinative of any re-making and there would be no point in relisting the appeals for re-making.
16. Following submissions made by Mr Chakmajkian and, briefly by Mr Melvin, I indicated that I would reserve my decision and provide that in writing which I now turn to do.
LEGAL FRAMEWORK
17. Mr Chakmajkian helpfully provided me with a version of the definition of a “person with a Zambrano right to reside” which he had emboldened for the parts relevant to his argument. However, that definition has to be read with paragraphs EU11 and EU14 in order to understand the arguments put forward by both parties. The relevant parts of Appendix EU are therefore as follows.

Paragraph EU11
“Persons eligible 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 with a Zambrano right to reside
EU11. The applicant meets the eligibility requirements for indefinite leave to enter or remain as … (or as … 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, one of conditions 1 to 7 set out in the following table is met:
Condition
3.
Is met where:
(a) The applicant:
… ;or
(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 in respect
of the applicant.”

Paragraph EU14
“Persons eligible for limited leave to enter or remain as a relevant EEA citizen or their family member, as a person with a derivative right to reside or with a Zambrano right to reside or as a family member of a qualifying British citizen
The applicant meets the eligibility requirements for limited leave to enter or remain where the Secretary of State is satisfied, including (where applicable) by the required evidence of family relationship, that, at the date of application, condition 1 or 2 set out in the following table is met:

Condition
1.
Is met where:
(a) The applicant is:
…; or
(v) a person with a Zambrano right to reside; …”
18. A “person with a Zambrano right to reside” is defined in its relevant parts as follows:

“a person who has satisfied the Secretary of State by evidence provided that they are (and for the relevant period have been) or (as the case may be) for the relevant period they were:
(a) resident for a continuous qualifying period in the UK which began before the specified date and throughout which the following criteria are met:
(i) they are not an exempt person; and
(ii) they are the primary carer of a British citizen who resides in the UK; and
(iii) 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; and
(iv) they do not have leave to enter or remain in the UK, unless this:
(aa) was granted under this Appendix; or
(bb) is in effect by virtue of section 3C of the Immigration Act 1971; or …
…
in addition:
(a) ‘relevant period’ means here the continuous qualifying period in which the person relies on meeting this definition; and
(b) unless the applicant relies on being a person who had a derivative or Zambrano right to reside or a relevant EEA family permit case, the relevant period must have been continuing at 2300 GMT on 31 December 2020; and
(c) where the role of primary carer is shared with another person in accordance with sub-paragraph (b)(ii) of the entry for ‘primary carer’ in this table, the reference to ‘the person’ in sub-paragraph (a)(iii) above is to be read as ‘both primary carers’”
[my emphasis]
19. A “person who had a derivative or Zambrano right to reside” is defined as follows:

“a person who, before the specified date, was a person with a derivative right to reside or a person with a Zambrano right to reside, immediately before they became (whether before or after the specified date):
(a) a relevant EEA citizen; or
(b) a family member of a relevant EEA citizen; or
(c) a person with a derivative right to reside; or
(d) a person with a Zambrano right to reside; or
(e) a family member of a qualifying British citizen,
and who has remained or (as the case may be) remained in any (or any combination) of those categories (including where they subsequently became a family member who has retained the right of residence by virtue of a relationship with a relevant EEA citizen or with a qualifying British citizen)
in addition, where a person relies on meeting this definition, the continuous qualifying period in which they rely on doing so must have been continuing at 2300 GMT on 31 December 2020”
[my emphasis]
20. A “continuous qualifying period” is also defined as follows:

“a period of residence in the UK and Islands (save in …; and in the entry for ‘person with a derivative right to reside’ and for ‘person with a Zambrano right to reside’ in this table, where (in each case) the period of residence must be in the UK …):
(a) which, …, began before the specified date; and
(b) during which none of the following occurred:
(i) absence(s) from the UK and Islands which exceeded a total of six months in any 12-month period, except for:
…; and
(c) which continues at the date of application, unless:
(i) the period is of at least five years’ duration; or
(ii) (aa) the person acquired the right of permanent residence in the UK under regulation 15 of the EEA Regulations …; or
…; or
(iii) the person has valid indefinite leave to enter or remain granted under this Appendix…; or
(iv) there is valid evidence of their indefinite leave to enter or remain; or
…”
[my emphasis]
21. “Relevant period” is not defined other than within paragraphs EU11 and EU14. However, “supervening event” is defined. Since that may be relevant to the Respondent’s arguments, I also set out that definition even though I was not addressed on it:

“at the date of application:
(a) the person has been absent from the UK and Islands for a period of more than five consecutive years (at any point since they last acquired the right of permanent residence in the UK under regulation 15 of the EEA Regulations, … or since they last completed a continuous qualifying period of five years); or
(b) any of the following events has occurred in respect of the person, unless it has been set aside or revoked:
(i) any decision or order to exclude or remove under regulation 23 or 32 of the EEA Regulations; or
(ii) a decision to which regulation 15(4) of the EEA Regulations otherwise refers, unless that decision arose from a previous decision under regulation 24(1) of the EEA Regulations …; or
(iii) an exclusion decision; or
(iv) a deportation order, other than by virtue of the EEA Regulations; or
…”
22. It is also necessary for me to refer to the case-law concerning the interaction of Appendix FM leave and status under the EUSS (although I did not understand Mr Chakmajkian to submit that if the position of the Appellants could not be distinguished from the cases relied on by the Respondent, they would lose).
23. I do not need to dwell on the Court of Appeal’s judgment in Akinsanya 1. In brief summary, the Court of Appeal concluded that EU law did not provide for a right to be recognised as a “Zambrano carer” in circumstances where an individual did not have to leave a member state because they were entitled to remain under domestic immigration provisions. The Secretary of State lost her appeal in that case only because the Court of Appeal could not be satisfied that, under the Immigration (European Economic Area) Regulations 2016 (“the EEA Regulations”), the Secretary of State had not intended to adopt a more generous interpretation of EU law which would then influence the definition of a “person with a Zambrano right to reside” in Appendix EU (which at that time included a cross-reference to the EEA Regulations).
24. The main relevance of Akinsanya 1 in this case is the reliance which Mr Chakmajkian sought to place on guidance which was published following reconsideration by the Respondent of her policy in relation to the interaction between Appendix FM leave and status under Appendix EU after the judgment in Akinsanya 1. That is entitled “EU Settlement Scheme: Zambrano primary carers” and was published on 13 June 2022 (“the Guidance”).
25. The Respondent relies on Sonkor and Akinsanya 2. The guidance in Sonkor reads as follows:

“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.
Although the guidance does not state in terms what is “the relevant date”, it is clear from [19] of the decision that the Tribunal considered that the appellant must meet the definition relied upon as at date of application ([19]).
26. Akinsanya 2 is largely concerned with an argument concerning those who have leave to remain under Appendix FM as distinguished from those who have a realistic prospect of obtaining such leave. That argument has no relevance to these appeals. However, Eyre J did make certain observations about “Zambrano carers” which are relevant to the understanding as to the nature of the rights of such persons and which also inform a proper interpretation of Appendix EU.
27. First, although I did not understand Mr Chakmajkian to dispute this, Eyre J confirmed at [20] of the judgment that the withdrawal agreement between the UK and the EU when the UK left the EU (“the Withdrawal Agreement”) does not make provision for “Zambrano carers”. It is instructive however to have regard to his reasoning in that regard:

“20. The EUSS and App EU made provision for the rights of such persons after the United Kingdom's departure from the European Union. They provided for the grant of leave to remain to such persons and for a route to settled status. The Withdrawal Agreement had addressed the rights of Chen and Ibrahim and Teixeira carers but did not provide for Zambrano carers (unsurprisingly given that such persons were the carers of British citizens who ceased to be EU citizens when the United Kingdom left the European Union). However, provision was made for Zambrano carers in App EU.”
28. Second, at [22] and [23], Eyre J referred to the Statement of Changes which introduced the original iteration of Appendix EU

“21. The original iteration of App EU had been introduced on 7th March 2019 by the Statement of Changes in Immigration Rules (HC 1919) of that date. At para 3.2 the Explanatory Memorandum said:
‘The EU Settlement Scheme – contained in Appendix EU to the Immigration Rules – provides the basis for resident EU citizens and their family members, and the family members of certain British Citizens, to apply for UK immigration status, which they will require in order to remain here permanently after the UK's withdrawal from the European Union.’
22. The scope of the EUSS was described at para 7.65 which included the following:
‘The scheme will also be open to others lawfully resident in the UK by virtue of a 'derivative right' to reside, based on wider EU law. These are 'Chen carers' (the primary carer of a self-sufficient EEA citizen child) and 'Ibrahim and Teixeira' cases (a child of a former EEA citizen worker who is in education in the UK and their primary carer), which are protected by the draft Withdrawal Agreement with the EU in terms of their current rights, and 'Zambrano carers' (the primary carer of a British citizen child or dependent adult). The Government has decided that, in light of the particular circumstances of these cases, it is appropriate that their long term status in the UK should be protected by bringing them within the scope of the EU Settlement Scheme;'
The Judge then referred to Akinsanya 1 but that is no longer relevant as he was there considering the original definition of “a person with a Zambrano right to reside” which cross-referred to regulation 16 of the EEA Regulations. That is no longer the basis of the definition (see above).
29. Third, although I do not rely on what is said at [27] to [36] of the judgment as I was not taken to it, what is there said forms a relevant background to the Guidance, reference to which begins at [37] of the judgment. As Eyre J set out, Ministers were provided with 3 options for a way forward when considering the position for “Zambrano carers”. What is described at [27] as “Option 1” is that all those who met the Zambrano requirements in the EEA Regulations at the end of the transition period should qualify for EUSS status. As Mr Chakmajkian accepted, those with Zambrano rights under EU law had no right to permanent residence under the EEA Regulations. As such, the fact that an individual had completed a period of five years as a “Zambrano carer” would not give an indefinite right to remain under EU law.
30. On the other hand, I fully accept Mr Chakmajkian’s submission that the facts of Sonkor and Akinsanya 2 are different from those of the Appellants here as the appellant/claimants in Sonkor and Akinsanya 2 were all persons who had been granted leave under Appendix FM prior to 31 December 2020. As such, no argument arose as to the import of any Zambrano rights which were claimed to have existed prior to 31 December 2020 and relied upon thereafter. Although Eyre J was not dealing with the situation, as here, of those with no Appendix FM leave as at 31 December 2020, what is said at [118] is potentially instructive for my purposes:

“… The terms of the definition correctly reflected the Zambrano jurisprudence. The purpose of App EU was to continue after the withdrawal of the United Kingdom from the European Union the rights which Zambrano carers had enjoyed in the United Kingdom by reason of EU law until then. The replacement of the provisions of App EU with other provisions having the effect that those in the position of the Claimants were to be treated as having Zambrano rights would have had a different effect. It would have meant that those (such as the Claimants) who did not have Zambrano rights while the United Kingdom was in the European Union were nonetheless to be given such rights (or strictly speaking their equivalent) after this country's departure from that Union. They were, moreover, to be given such rights by App EU which had an avowedly different purpose. The material before me demonstrates that there was simply no prospect that such a course would have been adopted. It would have amounted to the adoption of option 1 of the three options which were presented. On behalf of the Claimants the point was made that as that course was presented as an option it follows that it was a course which it was open to the Defendant to adopt and that the court cannot be confident that the option would not have been chosen. That is a forensically attractive argument but it is one which is artificial when the material leading up to the revision of App EU and of the Guidance is seen as a whole. The clear intention was to replicate the rights which had been enjoyed under EU law but not to proceed further nor to grant additional rights. The fact that adoption of option 1 would involve such a course was expressly identified in the submission as a factor against it and as a matter meaning that it was ‘not consistent with the original policy intention’. The rejection of option 1 was not affected by any misunderstanding as to the scope of the Zambrano right. The acceptance and implementation of option 1 on a true understanding of the Zambrano jurisprudence would have required an express acceptance of the fact that the Zambrano rights were being extended to those who had not enjoyed those rights under EU law and the material makes it clear that there was no prospect of such a step. It is highly relevant in this regard that the effect of the revision of App EU and the publication of version 5 of the Guidance was to implement option 3 and to exclude those, such as the Claimants who had leave to remain under a different provision, even while including the reasonable prospect cohort amongst those potentially entitled to be treated as Zambrano carers.”
31. “Option 3” as there referred to is set out at [27] of the judgment as being to “[c]ontinue to exclude from EUSS eligibility under the Zambrano category those with, at the end of the transition period, limited leave under another route, but include those with, at that point, a realistic prospect of success of obtaining such leave”.
32. I turn then to discuss the proper interpretation of Appendix EU so far as concerns these appeals, taking into account the case-law to which I have referred.
DISCUSSION
33. The Respondent’s case is attractively simple. The date at which the definition of either a “person with a Zambrano right to reside” or a “person who had a derivative or Zambrano right to reside” is to be considered is date of application. If, at that date, the applicant has Appendix FM leave, that person is precluded from meeting the definition and therefore cannot qualify for status under the EUSS.
34. The issue is whether the “unnecessary complications” introduced by the Appellants to which the Respondent refers in her grounds are in fact undermining of that straightforward position.
35. As I understood Mr Chakmakjian’s arguments, they are as follows. The Appellants had rights as “Zambrano carers” from the date when their son was registered as a British citizen in March 2016. As such, they had completed a “continuous qualifying period” of five years by March 2021 and certainly by February 2022. Their right to settled status had effectively crystallized at that point in time. It could not be removed by the grant of Appendix FM leave. All that they had to show was that, by the time they were granted leave on 8 February 2022, they had completed the “continuous qualifying period” as “a person with a Zambrano right to reside” and accordingly they fell for a grant of settled status under paragraph EU11.
36. In response to a question from me, Mr Chakmakjian said that it did not matter whether one counted the period of qualification backwards or forward from March 2016; the effect was the same. However, one could only count backwards from the grant of Appendix FM leave because it was at that point in time that the right as a “Zambrano carer” was extinguished as a matter of EU law. Mr Chakmakjian also placed weight on the distinction between tenses in the relevant definitions in Annex 1 to Appendix EU. It is of particular note that a “person with a Zambrano right to reside” is defined as being not only a person who is (present tense) and has been a “Zambrano” carer but also a person who was (past tense) a “Zambrano” carer for the relevant period.
37. I begin with the provisions of paragraph EU11. That makes clear that an applicant is required to satisfy the Respondent “at the date of the application” that the relevant condition is met. Under paragraph EU11, the condition is that the person “is a person with a Zambrano right to reside” or “is a person who had a derivative or Zambrano right to reside”. That would tend to support the Respondent’s position.
38. However, when one turns to the definition of a “person with a Zambrano right to reside”, and, in particular, “continuous qualifying period”, the position is, as Mr Chakmajkian says, different.
39. The definition of a “person with a Zambrano right to reside” includes the possibility (as Mr Chakmajkian pointed out) as I have noted above that an applicant was for the relevant period resident for a “continuous qualifying period” and meets the remaining criteria throughout that “continuous qualifying period”. Although relevant period is not separately defined in Annex 1, it is defined within the definition of a “person with a Zambrano right to reside” as being the “qualifying period in which the person relies on meeting” the definition.
40. Turning then to what is meant by a “continuous qualifying period”, it is clear that this must include a period prior to 31 December 2020 as the period must begin prior to that date under the definition. The period must be continuing “at the date of application” which is consistent with both paragraphs EU11 and EU14. However, that does not apply where “the period is of at least five years’ duration”. It seems to me that this is a complete answer to the Respondent’s position.
41. That interpretation is consistent with what was said by Eyre J at [118] of Akinsanya 2 about the position taken by the Respondent following Akinsanya 1. She had intended to reflect rights which were existing at the time of withdrawal but not to confer rights which had by then been extinguished (on the view of EU law as explained by the Court of Appeal in Akinsanya 1). That therefore also supports the distinction drawn by Mr Chakmajkian between these Appellants and the appellant/claimants in Sonkor and Akinsanya 2.
42. I initially had some misgivings about the Appellants’ arguments not least because, as Eyre J pointed out in Akinsanya 2, the Appellants’ son from whom their rights derive had ceased to be an EU citizen by 31 December 2020. As such, there was no basis under EU law for a “Zambrano” right to continue after that date. As Eyre J pointed out, it is no doubt for that reason that the Withdrawal Agreement does not confer rights to “Zambrano carers”. The Appellants are therefore entirely reliant on Appendix EU as the source of their rights.
43. It is also the case that under EU law, “Zambrano carers” were not eligible for permanent residence. It may therefore appear counter-intuitive for them to be able to rely on a five-year period arising prior to withdrawal and continuing thereafter as the basis for settled status. Nevertheless, there is of course nothing to prevent the Respondent from conferring wider rights than EU law required (as the Court of Appeal in Akinsanya 1 made clear). Based on the foregoing analysis, that is what has occurred on the facts of these cases.
44. The foregoing analysis does not mirror precisely that of Judge Davies. Nevertheless, there is nothing in his analysis which is inconsistent with mine. In any event, as noted above, Mr Melvin accepted that, were I to reach the same conclusion as Judge Davies, any error made would be immaterial as there can be only one correct interpretation of the rules.
45. In case I am wrong in my conclusion, I make the following additional observations. That may also assist in the event that other appellants seek to rely on this decision.
46. I would not have found that the Appellants could meet paragraph EU14 had they not completed five years as “Zambrano carers” before they were granted Appendix FM leave. The exception to the rule in relation to “continuous qualifying period” for periods of at least five years would not apply and the period would therefore be assessed as at date of application under both paragraph EU14 and the definitions. Similarly, of course they could not meet paragraph EU11 as they would not have completed a five-year period as a “person with a Zambrano right to reside”.
47. Had it not been for the conclusion I have reached in relation to whether the Appellants can satisfy the definition of a “person with a Zambrano right to reside”, I would not have concluded that they could meet the definition of a “person who had a Zambrano right to reside”. In order to meet that definition, they would have to show that they later met the definition in one of the other categories listed. The only other definition which is applicable is as a “person with a Zambrano right to reside”. The argument then becomes circular. However, the definition is not excluded by the reference to “supervening event” as the Respondent’s decision under appeal suggests. That is only concerned with absences from the UK or decisions to remove, deport or exclude (see the definition). None of those criteria apply here.
48. I would not have been assisted by the Guidance in interpreting Appendix EU. Although as Mr Chakmajkian pointed out, the Guidance indicates that the Respondent intended to “protect those lawfully resident in the UK by the end of the transition period by virtue of a Zambrano right to reside”, such rights did not give rise to permanent residence under EU law and the Guidance says nothing about any intention to confer rights to remain indefinitely on such persons, particularly in circumstances where some other form of leave had been granted. If the Appellants had not completed a five-year period as “Zambrano carers” before making their Appendix FM application, therefore, I would have had no difficulty in concluding that they could not succeed even though they resided as “Zambrano carers” as at 31 December 2020.
49. In conclusion, however, I find that the Appellants do indeed meet the requirements of paragraph EU11 as “person[s] with a Zambrano right to reside”. It follows that the Respondent’s decision is not in accordance with Appendix EU. Even if there is any error in the Decision, therefore, it is immaterial as the conclusion reached is inevitable. It follows that I reject the Respondent’s appeal.
NOTICE OF DECISION
The decision of First-tier Tribunal Judge Andrew Davies promulgated on 28 September 2023 does not contains a material error of law. I therefore uphold that decision with the consequence that the Appellants’ appeals remain allowed.

L K Smith
Upper Tribunal Judge Smith
Judge of the Upper Tribunal
Immigration and Asylum Chamber
20 September 2024