Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005971

First-tier Tribunal No: EA/56538/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 29th of April 2025

Before

UPPER TRIBUNAL JUDGE BULPITT
AND
UPPER TRIBUNAL JUDGE LOUGHRAN

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MS TRANDAFILE NIKA
(NO ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Mr P Deller, Senior Home Office Presenting Officer
For the Respondent: Mr J Collins, Counsel instructed by Marsh & Partners Solicitors

Heard at Field House on 16 April 2025

DECISION AND REASONS

1. The Secretary of State for the Home Department appeals against the decision of First-tier Tribunal Judge Cameron (the Judge) in which the Judge allowed an appeal by Ms Nika against the refusal of her application for indefinite leave to remain in the United Kingdom applying Appendix EU to the Immigration Rules. Although it is the Secretary of State for the Home Department who brings this appeal, to avoid confusion, we shall refer to the parties as they were in the First-tier Tribunal where Ms Nika was the appellant and the Secretary of State for the Home Department the respondent.

2. The appellant is a citizen of Albania. She claimed asylum in the United Kingdom in October 2017. In December 2017 she gave birth to her son who is a British citizen. The appellant’s asylum claim was refused on 8 March 2019 but on 13 March 2019 she was granted leave to remain in the United Kingdom which was valid until 7 September 2021 (“the 2019 grant”). Before that leave expired, on 24 June 2021 she applied for further limited leave to remain under Appendix EU to the Immigration Rules as “a person with a Zambrano right to reside”. That application was granted by the respondent on 24 August 2022 and the appellant was granted leave to remain which is due to expire on 25 August 2027 (“the 2022 grant”). Mr Deller confirmed that that leave remains in place today.

3. On 3 October 2023 the appellant applied for indefinite leave to remain under Appendix EU to the Immigration Rules again on the basis that she was “a person with a Zambrano right to reside”. This time her application was refused by the respondent in a decision dated 31 October 2023 in which the respondent found that the appellant did not meet the definition in Appendix EU of the Immigration Rules of “a person with a Zambrano right to reside” and so could not meet the requirements of the Rules for being granted the leave she sought.

4. The appellant appealed to the First-tier Tribunal against that decision. There are two permitted grounds for that appeal by virtue of Regulation 8 of The Immigration (Citizens Rights Appeals) (EU Exit) Regulations 2020 but it was common ground before us that since “a person with a Zambrano right to reside” does not come within the scope of the Withdrawal Agreement, the only relevant ground of appeal was by virtue of reg 8(3)(b): that the respondent’s decision is not in accordance with residence scheme immigration rules (i.e. Appendix EU).

5. The Judge heard the appeal on 18 September 2024 and promulgated his decision allowing the appeal on 12 November 2024.

The Judge’s Decision

6. At [13] of his decision the Judge records that there is no dispute about the fact the 2019 grant of leave to remain to the appellant was made outside of the Immigration Rules. At [15] the Judge records the respondent’s submission that the 2022 grant was a mistake as the appellant did not meet the requirements [of the Rules] at that time, but the Judge notes at [16] that the leave has not been revoked. The Judge then makes reference to the Upper Tribunal decision in Sonkor (Zambrano and non-EUSS leave) [2023] UKUT 00276 (IAC) and the Court of Appeal decision in Vasa [2024] EWCA Civ 777 before turning to his conclusions. The Judge summarised those conclusions at [24]:

I am therefore satisfied that the appellant was originally granted discretionary leave outside of the rules but was then granted pre-settled status on 24 August 2022 until 25 August 2027 on the basis that she met the Zambrano provisions. That leave has not been revoked and therefore at the time of the relevant application she did have relevant leave, and I am therefore satisfied that she meets the requirements of the regulations.

7. Consequently the Judge allowed the appellant’s appeal.

The Appeal to the Upper Tribunal

8. The respondent was granted permission to appeal by another First-tier Tribunal Judge who considered it arguable that the Judge had regarded the 2022 grant of leave to remain under Appendix EU as determinative of the appeal and erred by failing to analyse whether the appellant met the relevant provisions of the Immigration Rules.

9. In his helpful skeleton argument and oral submissions, Mr Deller asserted that the Judge had failed to consider the definition in Appendix EU of “a person with a Zambrano right to reside.” Had he done so, Mr Deller argued, the Judge would have inevitably concluded that the appellant did not meet that definition because that definition includes a requirement that the applicant had not had leave to remain in the UK during their continuous qualifying period of residence, unless that leave was granted under Appendix EU, whereas between 13 March 2019 and 24 August 2022 the appellant had leave to remain in the UK which was not granted under Appendix EU.

10. Mr Deller argued that this was an error of law which required the Judge’s decision to be set aside and a new decision to be made dismissing the appeal because the respondent’s decision was in accordance with Appendix EU. Mr Deller further argued that the grant of limited leave to remain under Appendix EU in 2022 was an unfortunate error but was irrelevant to the issue before the Tribunal as that grant had no bearing on the appellant’s inability to meet the definition in Appendix EU of “a person with a Zambrano right to reside.”

11. In his equally helpful skeleton argument, Mr Collins accepted that the 2019 grant of leave to remain was made outside the Immigration Rules but maintained that the likelihood is that the 2019 grant was a recognition of the appellant having a “Zambrano right” to remain. In his oral submissions Mr Collins recognised however that the 2019 grant could not on that basis have been under Appendix EU to the Immigration Rules because the version of Appendix EU that existed at the time of the 2019 grant did not include reference to people with a Zambrano right to remain and that it was only in May 2019 that Zambrano carers came within the scope of Appendix EU. On this basis Mr Collins accepted that there was little he could say to counter the submissions that had been made by Mr Deller.

Analysis

12. For the appellant’s application for indefinite leave to remain to be successful she needed to establish that she met the definition in Annex 1 of Appendix EU of a “Person with a Zambrano right to reside”. So far as it is relevant to the appellant, that definition (with our emphasis added) is:

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;….
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’

13. It is unfortunate that the Judge did not refer to that definition in his decision because once it is analysed, it becomes clear that, on the agreed facts before the Judge, the appellant indisputably did not come within the terms of the definition. Those agreed facts include that from 13 March 2019 until 24 August 2022, i.e. during the continuous qualifying period during which she was resident in the United Kingdom, the appellant held leave to remain which had not been granted under Appendix EU. As part (a)(iv)(aa) of the definition makes clear, that precluded her from being “a person with a Zambrano right to reside” as that term is defined in Appendix EU.

14. That position is unchanged by the 2022 grant of leave to remain under Appendix EU to the appellant, notwithstanding the fact that grant remains in force and does not expire until 2027. We agree with Mr Deller that the 2022 grant has no bearing on reasons why the appellant cannot meet the definition of a person with a Zambrano right to reside in Appendix EU. The simple fact is that within the definition, a person with a Zambrano right to reside does not include someone who, during the continuous qualifying period, has had leave to remain in the UK that was not granted under Appendix EU. The appellant however has had such leave during the continuous qualifying period. Like the appellant in Sonkor (Zambrano and non-EUSS leave this previous non-EUSS grant of leave to remain meant the appellant was “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.” Once the definition is correctly considered, it is apparent that the appellant’s application was bound to fail.

15. The Judge’s conclusion at [24] that the appellant “meets the requirements of the regulations (sic)” apparently reached on the basis that at the time she made her application the appellant had leave granted under Appendix EU, therefore involved an error of law. The Judge’s conclusion failed to address the 2019 grant of leave to remain, which indisputably was not under Appendix EU and failed to apply the agreed facts to the definition of “a person with a Zambrano right to reside” as it appears in Appendix EU.

16. Accordingly we find the decision of the Judge to contain an error of law and set it aside. Having done so we proceed to remake the decision and dismiss the appellant’s appeal because the respondent’s decision was in accordance with Appendix EU. The appellant is not a “person with a Zambrano right to reside” as defined in Appendix EU to the Immigration Rules and therefore did not meet the eligibility requirements for being granted the indefinite leave to remain she sought.

17. The appellant does however continue to enjoy the leave to remain she was granted in the 2022 grant. That leave is due to expire in 2027 and Mr Deller confirmed that to date no steps have been taken to revoke it.

Notice of Decision

The decision of First-tier Tribunal Judge Cameron contains an error of law and is set aside.

We remake the decision and dismiss the appellant’s appeal under The Immigration (Citizens’ Rights Appeals) (Eu Exit) Regulations 2020

Luke Bulpitt

Judge of the Upper Tribunal
Immigration and Asylum Chamber

16 April 2025