Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case Nos: UI-2025-001015
UI-2025-001016

First-tier Tribunal Nos: EU/55959/2023
LE/04861/2024
EU/55955/2023
LE/04860/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 20th of May 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE GRIMES

Between

Mrs Purviben Brijalkumar Patel (First Appellant)
Mr Brijalkumar Bhailalbhai Patel (Second Appellant)
(NO ANONYMITY ORDER MADE)
Appellants
and

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellants: Mr M Aslam, counsel, instructed by Paul John & Co Solicitors
For the Respondent: Mr K Ojo, Home Office Presenting Officer

Heard at Field House on 29 April 2025

DECISION AND REASONS
1. The Secretary of State is the Appellant in this appeal, however I refer to the parties as they were in the First-tier Tribunal.
2. The Appellants, who are husband and wife and nationals of India, appealed against the decisions of the Secretary of State dated 10th October 2023 refusing their applications for leave to remain as persons with a ‘Zambrano right to reside’ in the UK within Appendix EU of the Immigration Rules. In the refusal letters the Respondent refused the Appellants’ applications under EU11 and EU14 of Appendix EU. The Appellants appealed those decisions and, in a decision dated 19th December 2024, the First-tier Tribunal Judge allowed the appeal, being satisfied that the Appellants meet the requirements for leave under Appendix EU.
3. The Secretary of State applied for permission to appeal to the Upper Tribunal on one ground. The Secretary of State contends that the judge materially erred in law in finding that the Appellants have accrued a continuous qualifying period of five years in order to qualify for settled status under Appendix EU11. It is contended that the judge mistakenly overlooked the fact that both Appellants were granted leave to remain outside the Rules from 27th August 2015 until 14th March 2018 and under Appendix FM from 13th June 2018 until 13th December 2020. It is therefore contended that neither Appellant completed a continuous qualifying period of five years within Appendix EU such as to allow them to qualify for settled status.
4. The Secretary of State relied on the decision in Sonkor (Zambrano and non-EUSS leave) Ghana [2023] UKUT 00276 (IAC) which states (headnote 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.”
5. At the hearing before me Mr Ojo conceded that the refusal letter was not sufficiently clear in regard to the Respondent’s position as to the continuous qualifying period. He accepted that the fact that the Appellants had leave other than under Appendix EU was not brought to the attention of the judge by either party. He accepted that the evidence before the judge was unclear. However, in his submission, the position is that the Appellants’ daughter was not granted British citizenship until 1st December 2015 and therefore the Appellants could not have begun their continuous qualifying period as Zambrano carers until at least that date. As they had leave to remain other than under Appendix EU after 2015, they could not have completed a continuous period of 5 years after their daughter became a British citizen. In his submission the judge made a mistake of law in applying the law to the wrong facts.
6. Mr Aslam conceded that the judge erred at paragraph 24 in finding that the Appellants never had any other form of leave other than Zambrano leave. He accepted that the Appellants had leave to remain outside the Rules and under Appendix FM as asserted by the Secretary of State. However, he also accepted that there was no evidence as to the Appellants’ leave before the judge.
7. However, Mr Aslam further accepted that the judge erred at paragraph 25, where she said:
“I find that Annex 1(b) (as set out above) of the provisions applies here as they do have a continuous five year basis to succeed. The relevant period started on 8 April 2005, when the daughter was born up until the date of the application and therefore the five year period I find is satisfied.”
8. Mr Aslam accepted that the relevant period could not have started until the child acquired British citizenship in 2015. He accepted therefore that the judge’s conclusion at paragraph 25 amounts to a material error of law.
9. I note that both parties accepted that the issues to be determined were not clear from the refusal letter nor were they made clear at the hearing in the First-tier Tribunal. It was accepted by the parties that neither party clarified the issues or presented all of the evidence to the judge in terms of the issues to be determined. Nevertheless, Mr Aslam properly conceded that the judge made a material error based on a misunderstanding of the underlying facts.
10. In light of the concession, as set out above, I set aside the decision of the First-tier Tribunal in its entirely.
Remaking the Decision
11. At the outset of the hearing Mr Ojo conceded that, although the Appellants do not meet the requirements of E11 of Appendix EU, he accepted that they meet the requirements of EU14 and are therefore entitled to pre-settled status under Appendix EU.
12. Mr Aslam was content with this concession.
13. I therefore remake the decision by allowing the appeal under Appendix EU, EU14.
Notice of Decision
14. The Decision of the First-tier Tribunal involves the making of an error of law. I set aside the decision of the First-tier Tribunal in its entirety. I remake the decision by allowing the Appellants’ appeal.

A Grimes

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

13 May 2025