Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-001115 (1)
& UI-2024-001116 (2)

First-tier Tribunal No: EA/13955/2021 (1)
& EA/13958/2021 (2)

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 13th of March 2025

Before

UPPER TRIBUNAL JUDGE RASTOGI
DEPUTY UPPER TRIBUNAL JUDGE GREER

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

KEHINDE ADEPEJU AFOLABI (1)
ADEBOLA MICHAEL OGUNMOKUN (2)
Respondent

Representation:
For the Appellant: Mr Davies (of Counsel)
For the Respondent: Mr Lawson (Senior Home Office Presenting Officer)

Heard at Birmingham Civil Justice Centre on 3 March 2025

DECISION AND REASONS

Introduction

1. For the sake of clarity, the parties shall be referred to as they appeared before the First Tier Tribunal.

2. This is the Secretary of State’s appeal against the decision of Judge of the First Tier Tribunal Pinder of 29th November 2023 to allow the Appellants’ appeals against the Respondent’s decisions of 20th April 2021 to refuse their applications for status under Appendix EU to the Immigration Rules of 24th February 2021.

3. By order of Upper Tribunal Judge Rimmington dated 16th April 2024, the Respondent has been granted permission to appeal. In her application for Permission to appeal of 8th March 2024 The Secretary of State advanced the following grounds:

i. Ground 1: Mistake of Fact: Judge Pinder treated the decision under appeal as if it was against a decision made under the 2016 Regulations when in fact it was against a decision under Appendix EU to the Immigration Rules. To this extent, the Judge is said to have Made a mistake as to when a Continuous Qualifying Period might have started and continued.

ii. Ground 2: Mistake of Fact: The First Tier Tribunal did not know that the Appellants had been granted leave to remain under Appendix FM to the Immigration Rules. This was relevant to the Tribunal’s assessment of the likelihood of the Appellants being granted leave under that Appendix.

The Hearing

4. The matter came before us for an error of law hearing. At the beginning of the hearing, Mr Lawson indicated that he did not wish to pursue the grounds of appeal as he now accepted that the First Tier Tribunal’s determination does not contain a material legal error. He indicated that he did not wish to withdraw the Respondent’s appeal under rule 17 of the Procedure Rules, but instead invited the Tribunal to dismiss the Appeal.

Findings and Reasons

5. In light of Mr Lawson’s submissions, it is not necessary for us to deal with the Respondent’s grounds in detail. Having considered the merits of the appeal, we find that Mr Lawson was right not to press the grounds of appeal.

6. In respect of Ground 1, we are satisfied that the First Tier Tribunal Judge was aware of the nature of the appeal before her and had the appropriate legal test at the forefront of her mind throughout the decision. The Judge plainly knew that this was an appeal against a decision made by under Appendix EU, and not a decision under the 2016 Regulations, and directed herself appropriately. This much is clear from the repeated reference to Appendix EU at [2], [20] and in particular [26] of the decision, in which the Judge clearly identifies and distinguishes the regimes under the Regulations and under the Immigration Rules. We accept Mr Lawson’s concession in respect of Ground 1.

7. In respect of Ground 2, Mr Lawson correctly drew our attention to the authority of Maisiri (EUSS; Zambrano; 'Realistic Prospect') Zimbabwe [2024] UKUT 235 (IAC), which was reported shortly after the Respondent lodged her grounds of appeal. In that case the Upper Tribunal held:

It is not incumbent on a decision maker who is considering the application or appeal of a person who is said to have a Zambrano right to reside to assess whether that person stands a realistic prospect of securing leave to remain under another provision of the Immigration Rules, including Appendix FM. The Secretary of State's guidance entitled EU Settlement Scheme: person with a Zambrano right to reside has been wrong in suggesting otherwise from 14 December 2022 to date.

8. As the Upper Tribunal recognised in the case of Sonkor (Zambrano and non-EUSS leave) Ghana [2023] UKUT 276 (IAC), it is only in circumstances in which a Zambrano carer holds non-EUSS leave at the date of application that they would be prevented from succeeding under Appendix EU due to holding leave to remain under another provision of the Immigration Rules.

9. The chronology provided in the Respondent’s grounds of appeal states that the Appellants were granted Leave to Remain under Appendix FM 6 days after the decisions against which the Appeals were brought, which is to say 26th April 2021. They did not have any leave to remain at the material time, namely, the date of their submission of the application giving rise to the decision under appeal on 24th February 2021. As such, applying the guidance in Maisiri and Sonkor, the Appellants were not barred from succeeding under Paragraphs EU 11 and EU 14 of Appendix EU. The fact that the Appellants were granted leave to remain after they made their applications for status under Appendix EU makes no difference to the assessment that the Judge was required to perform.

10. We agree with Mr Lawson that the First Tier Tribunal determination contains no material legal error and the Secretary of State’s appeal must be dismissed.

11. Having announced our decision at the hearing (with reasons to follow), Mr Davies applied for a fee award which, on pushing, he confirmed was in fact an application for the costs the appellant incurred in preparing for and attending the hearing. He was not in a position to particularise the costs incurred or the basis of his application so we allowed 14 days for him to put his submissions in writing and a further 14 for the respondent to respond. The submissions will then be put before one of us to deal with on the papers.

Notice of Decision

(1) The Appellant's appeal is dismissed; there is no material error of law in the Judge's decision.

J. Greer

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

3rd March 2025