Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2024-004553
First-tier Tribunal No: EU/56016/2024
LE/03159/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 4 September 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE HARRIS

Between

The SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

CARLA ALEJANDRA JURADO CLAVIJO

Respondent

Representation:
For Ms Clavijo: Ms Childs of Counsel
For the Secretary of State: Ms McKenzie, Senior Home Office Presenting Officer

Heard at Field House on 13 August 2026

DECISION AND REASONS

1. The Secretary of State for the Home Department appeals with permission against the decision dated 23 August 2024 of First-tier Tribunal Judge Scullion (“the FTTJ”) to allow the appeal of Ms Clavijo, a citizen of Bolivia, against a decision dated 30 July 2024 to refuse to grant her leave to remain under Appendix EU of the Immigration Rules.
2. For ease of reference, I will refer to the parties as they were before the First-tier Tribunal.
3. The appellant claims that she satisfies the requirements set out in category (a) of the definition contained in Annex 1 to Appendix EU for being a person with a derivative right to reside (for brevity’s sake often referred to as a “Chen carer”). The respondent disputes that the appellant satisfies the whole of the required continuous qualifying period.
4. The FTTJ found he was satisfied the appellant’s claim was demonstrated and allowed the appeal on the statutory ground of the respondent’s refusal decision not being in accordance with residence scheme Immigration Rules. In addition the FTTJ found the decision of the respondent was in breach of the Withdrawal Agreement.
5. There was also before the FTTJ a linked “Zambrano carer” type appeal (ref: EU/54584/2023) by the appellant which he dismissed.
6. This appeal came before me to decide whether there is an error of law in the decision of the FTTJ requiring it to be set aside and remade. The respondent produced for this hearing a composite bundle of documents. The appellant provided a copy of her First-tier Tribunal bundle of documents, her First-tier Tribunal supplementary skeleton argument and a skeleton argument for the error of law hearing in this Tribunal.
The Grounds of Appeal
7. As clarified before me by Ms Mckenzie, there are three grounds of appeal relied upon by the respondent:
(i) The FTTJ erred in law by failing to consider properly dicta in Velaj v SSHD [2022] EWCA Civ 767 that the interpretation of derivative rights must be the same irrespective of whether Zambrano or Chen carer rights. The FTTJ wrongly distinguished the effect of the appellant holding leave to remain under Appendix FM of the Immigration Rules at the specified date as regards the requirements for being a Chen carer compared to a Zambrano carer.
(ii) The FTTJ erred in law in his finding that even taking into account the period of Appendix FM leave held by the appellant, which included the “specified date” of 31 December 2020 at 11pm, she still met the continuous qualifying period requirement under Appendix EU.
(iii) The FTTJ erred in law by failing to identify adequately how the appellant falls within the person scope of the Withdrawal Agreement.
Legal Framework for Grounds 1 and 2
8. Following on from rights established as existing in European Union law in Zambrano [2011] EUECJ C-34/09 and Chen [2004] EUECJ C-200/02 , Annex 1 to Appendix EU of the Immigration Rules contains definitions for both “a person with a Zambrano right to reside” and “a person with a derivative right to reside” (the “Chen” type right). These definitions each set out requirements that must exist for a continuous qualifying period.
9. The definition in Annex 1 for a person with a Zambrano right to reside, relevant to the appellant’s case, is in category (a) and reads:
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
(cc) is leave to enter granted by virtue of having arrived in the UK with an entry clearance in the form of an EU Settlement Scheme Family Permit granted under Appendix EU (Family Permit) to these Rules on the basis they met sub-paragraph (a)(ii) of the definition of ‘specified EEA family permit case’ in Annex 1 to that Appendix; and
(v) they are not subject to a decision made under regulation 23(6)(b), 24(1), 25(1), 26(3) or 31(1) of the EEA Regulations, unless that decision has been set aside or otherwise no longer has effect;
10. The definition in Annex 1 for a person with a derivative right to reside, relied upon by the appellant for her Chen carer case, is in category (a) and reads:
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 an EEA citizen (in accordance with sub-paragraph (a)(i) of that entry in this table and, where they are also a British citizen, the EEA citizen falls within sub-paragraphs (c) and (d) of the entry for ‘relevant naturalised British citizen’ in this table); and
(iii) the EEA citizen is under the age of 18 years and resides in the UK as a self-sufficient person; and
(iv) the EEA citizen would in practice be unable to remain in the UK if the person in fact left the UK for an indefinite period; and
(v) they are not subject to a decision made under regulation 23(6)(b), 24(1), 25(1), 26(3) or 31(1) of the EEA Regulations, unless that decision has been set aside or otherwise no longer has effect
Is there a material error of law requiring me to set aside the decision of the First-tier Tribunal?
Ground 1
11. There is no dispute that the FTTJ set out the above definitions accurately at paragraph 11 of his decision.
12. It is also not disputed between the parties that the appellant held limited leave to remain under Appendix FM of the Immigration Rules between 3 March 2020 and 3 September 2022, a period which includes the “specified date” under Appendix EU of 11pm 31 December 2020.
13. At paragraph 16 to 18 of the decision the FTTJ found the appellant’s possession of the Appendix FM leave prevented her succeeding as a Zambrano carer. Those findings have not been challenged by the appellant.
14. In essence, the respondent’s case under ground 1 as argued in the grounds and before me, is that if the FTTJ found the appellant’s period of limited leave under Appendix FM prevented her demonstrating she met the definition of a Zambrano carer, the FTTJ should also have found this prevented the appellant demonstrating she met the definition of a Chen carer.
15. The respondent relies upon dicta in Velaj v SSHD [2022] EWCA Civ 767 at paragraph 33:
The history which I have set out above illustrates that the premise upon which the impact on the British Citizen dependant’s rights is considered is, and always has been, expressed in exactly the same terms for a Zambrano carer as it is for a Chen or Ibrahim/Teixeira carer, and that this was a matter of deliberate choice. The interpretation must therefore be the same irrespective of which of these derivative rights is being claimed. Moreover, the phrase must bear the same meaning irrespective of whether the applicant for derivative rights is a sole primary carer or shares caring responsibilities equally with another person.
16. The respondent argues that because both the definition for a Zambrano carer and for a Chen carer require the appellant to demonstrate they were holding a derivative right to reside as of the specified date, this would be prevented if the appellant was holding another form of leave such as limited leave under Appendix EU.
17. In her submissions MS Mckenzie went so far as to argue that on the basis of the dicta in Velaj at paragraph 33, the FTTJ should have first considered that possession of the Appendix FM leave prevented the appellant succeeding in satisfying the definition for a Chen carer before turning to the actual list of express requirements contained in the Annex 1 definition.
18. The appellant submits that while there is an express requirement in the Annex 1 definition at category (a)(iv) for a Zambrano carer to demonstrate she does not have any type of prohibited leave, there is no similar express requirement in the definition in Annex 1 for a Chen carer. Thus, the appellant argues it was lawfully open to the FTTJ to identify in his reasoning at paragraphs 19 and 20 there were differing requirements between the two categories of carer and that the leave requirement automatically preventing the appellant demonstrating she was a Zambrano carer did not exist in the definition applicable to being a Chen carer.
19. I consider it useful to note what were the primary issues in dispute before the FTTJ.
20. The Zambrano carer issue concerned the requirement at (a)(iv) of the relevant definition as to whether during the continuous qualifying period the appellant did not have leave to enter or remain (unless of an allowed type).
21. The Chen carer issue concerned a different requirement in terms relating to its relevant definition at (a)(iv): this was whether during the continuous qualifying period the EEA citizen (i.e. the appellant’s child) would in practice or would have been in practice unable to remain in the UK if the person in fact left the UK for an indefinite period.
22. Thus, for a start, I am not persuaded that there is an inherent inconsistency in the decisions made by the FTTJ as regards the Zambrano carer issue and the Chen carer issue, where the findings were as regards two different questions.
23. I am not persuaded the dicta in Velaj relied upon by the respondent is authority for imposing a further implicit requirement on the existing set of categories in the Annex 1 category (a) definition for Chen carers. In her skeleton argument Ms Child drew my attention to the Tribunal’s decision in MH (Appendix EU; withdrawal of concession) Albania [2025] UKUT 351 which held that in the definition of “person with a derivative right to reside” in Appendix EU of the Immigration Rules, category (a) does not exclude those who had another form of leave to remain. I agree with this analysis.
24. I am not satisfied it is a requirement under Appendix EU for a Chen carer to show she did not have leave to enter or remain, such as leave under Appendix FM, during the continuous qualifying period. I am not satisfied that the appellant’s possession of limited Appendix FM leave between March 2020 and September 2022 including at the specified date automatically prevents her from demonstrating she is a Chen carer for the purposes of Appendix EU.
25. Thus, I am not satisfied that there is a material error of law made by the FTTJ as argued in Ground 1. The respondent’s Ground 1 is not made out.
Ground 2
26. Bearing in mind that the judgment in Velaj actually concerned the issue of determining the impact on a dependent child if in fact the primary carer would leave the UK for an indefinite period time (sometimes described as “the compulsion test”), I agree with what is also held in MH Albania that the possession of leave to remain is a factor relevant to the assessment of whether a EEA citizen child would in practice be unable to remain in the UK if the primary carer in fact left the UK for an indefinite period.
27. This was the Chen carer issue in dispute before the FTTJ and that is the context for my considering the respondent’s Ground 2.
28. As argued before me, the respondent’s case under Ground 2 is that the claim of the appellant that she satisfied the requirements in category (a)(iv) was bound to fail because she held limited leave under Appendix FM of the Immigration Rules at the specified date. The respondent submits that this automatically means that in practice the appellant would not have to leave the UK for an indefinite period with the consequence that her EEA citizen child would not be able to remain here and therefore the appellant should not be treated as satisfying (a)(iv) throughout the required continuous qualifying period.
29. The appellant, continuing to rely on the analysis in MH Albania mentioned above, submits that the FTTJ made a decision as regards the appellant satisfying the requirements of (a)(iv) which was lawfully open to him to make. It was part of the appellant’s case before that the FTTJ that it did not automatically follow that the appellant could not satisfy the requirements because of holding limited Appendix FM leave: see the appellant’s supplementary FTT skeleton argument at paragraph 22 and 23.
30. This submission made by the appellant to the FTTJ also relied upon dicta in Velaj at paragraphs 68 and 69 that the precarious nature of any actual existing leave could be relevant to assessing the issue:
[68] … 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.
[69] I can also envisage a Zambrano carer whose limited leave to remain is due to expire making an application under Regulation 16(5)(c) and succeeding on the basis that they would have to leave the UK as soon as their limited leave expired and the child would have to go with them. In such a case if the decision-maker asks “what will happen to the child in the event that the primary carer leaves the UK for an indefinite period?” they will not be positing a completely unrealistic scenario. In any event, the practical difficulties of someone with limited leave to remain being able to satisfy the requirements of Regulation 16(5)(c) would not be a justification for construing those requirements in a manner which was clearly unintended.
31. The appellant’s case before the FTTJ was that there was a distinct precariousness about the leave she held at the time of the specified date because of her financial circumstances and ability to pay the fee for further leave when existing leave expired, exemplified when the respondent in 2022 refused to grant a fee waiver to her.
32. When considering the approach taken by the FTTJ in his decision, I bear in mind that the Court of Appeal in Velaj at paragraph 49 emphasizes that the question whether a dependent EU citizen child would be unable to reside in the UK depends on a fact-specific inquiry.
33. Reading the EUSS refusal decision of the respondent along with the record of the hearing contained in the FTTJ’s decision, particularly the matters in dispute, and the grounds of appeal, the respondent has not taken issue with any of the factual circumstances relied upon by the appellant.
34. Looking at the issues section of the FTTJ’s decision, the credibility of the appellant was not identified by the respondent as an issue before the judge.
35. Taking into account what the FTTJ says at paragraph 15 about considering all the evidence before him and looking at the decision as a whole, I am satisfied that the FTTJ did not himself reject any parts of the factual case relied upon by the appellant and this was the factual basis for when he applied the relevant legal tests under Appendix EU for Zambrano carers and Chen carers.
36. The complaint of Ground 2 is not that the FTTJ was wrong in law to accept any facts relied upon by the appellant. It is rather that the FTTJ did not rightly consider what the situation amounted to at the specified date before reaching his conclusion.
37. When reviewing the approach taken by the FTTJ, I am not persuaded that this complaint is made out.
38. I also note that the respondent does not argue in Ground 2 that the assessment of how precarious the ongoing presence of the appellant was at the specified date cannot take into account subsequent events, such as in fact not being in the financial position to obtain an extension of Appendix FM leave. This accords with what the Court of Appeal says at paragraphs 68 and 69 of Velaj.
39. At paragraph 18 of the decision the FTTJ, when assessing the Zambrano carer case, is clearly aware of the appellant’s possession of her non-Appendix EU leave between 3 March 2020 until 3 September 2022, which, of course includes the specified date. The FTTJ references this finding at paragraph 26 of the decision when proceeding to consider the Chen carer case of the appellant.
40. The FTTJ takes guidance from the dicta in paragraphs 68 and 69 of Velaj, which had been relied upon by the appellant in the FTT supplementary skeleton argument, about the nature of the fact-specific enquiry to be made, including that possession of leave could in fact be so precarious as to nevertheless mean a parent would in practice be leaving the UK for an indefinite period as claimed by the appellant.
41. It is in this context that I read paragraph 27 of the FTTJ’s decision where he reaches the conclusion that the appellant satisfies category (a)(iv) of the Chen carer definition in Annex 1 of Appendix EU.
42. I accept that the appellant is correct in the submission that in law her possession of Appendix FM leave at the specified date, while a factor to consider, does not automatically mean she cannot satisfy the Chen carer definition at (a)(iv).
43. Taking the findings of the FTTJ as a whole, I am satisfied that he engaged properly with the appellant’s circumstances, including at the specified date, when allowing the appellant’s Chen carer appeal. I am satisfied that the FTTJ reached a decision which was lawfully open to him to make on the facts before him.
44. I am not satisfied the FTTJ makes a material error of law in his decision as submitted in Ground 2 by the respondent. Ground 2 is not made out.
Ground 3
45. The respondent’s complaint is that the FTTJ did not adequately identify how the appellant came within the personal scope of Article 10 of the Withdrawal Agreement.
46. I can deal briefly with this ground as Ms Mckenzie indicated it stood or fell with the submissions made concerning the FTTJ’s assessment of matters under Appendix EU.
47. It is not disputed that a Chen carer can be a family member of an EEA national resident in this country at the specified date coming within the personal scope of Article 10 of the Withdrawal Agreement when read with Article 9(a)(ii).
48. I am satisfied that the findings made under the Immigration Rules by the FTTJ about the appellant’s circumstances as a Chen carer also establish that the appellant does come within the personal scope of Article 10 of the Withdrawal Agreement when read with Article 9(a)(ii).
49. I am not satisfied there is a material error of law, as argued by the respondent under Ground 3, in the FTTJ finding there to be a breach of the Withdrawal Agreement. Ground 3 is not made out.

Notice of Decision
I dismiss the appeal of the Secretary of State. The decision dated 23 August 2024 of First-tier Tribunal Judge Scullion did not involve the making of a material error of law and therefore stands.

M Harris

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

31 August 2026