UI-2025-003614

• Status of case: Unreported
• Hearing date: 12 Jan 2026
• Promulgation date: 16 Jan 2026
• Publication date: 2 Feb 2026
• Last updated on: 2 Feb 2026

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-003614

First-tier Tribunal No: EU/51220 2023
LE/00161/2024

THE IMMIGRATION ACTS

Error of law heard at Field House on 08 October 2025
Remaking dealt with on the papers on 12 January 2026
Decision & Reasons Issued:
On 16 January 2026

Before

UPPER TRIBUNAL JUDGE S RASTOGI
DEPUTY UPPER TRIBUNAL JUDGE T. BIBI

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
And

LYDIA ASANTI
(ANONYMITY NOT ORDER MADE)
Respondent

Representation:

For the Appellant: Ms S. Ferguson, Counsel
For the Respondent: Ms A. Ahmed, Senior Home Office Presenting Officer


DECISION AND REASONS

1. By way of a decision sealed on 20 November 2025 we found an error of law in the decision of the First-tier Tribunal dated 17 March 2025 in which the judge allowed the appellant’s appeal against the respondent’s decision of 20 December 2022, refusing her application made under the European Union Settlement Scheme (“EUSS”) dated 22 March 2022. The appellant had applied for leave to remain as a person with Zambrano right to reside, namely as the parent of a British child who may otherwise have to leave the UK.
2. At the conclusion of the error of law decision and in accordance with what was agreed at the hearing, we invited submissions (see [70]-[75] of the error of law decision which we annex below). As we expected, none were received, so in accordance with the directions we now remake the decision on the papers.
3. The findings of fact were all preserved and the purpose of the remaking is to apply those facts to the correct legal framework as we have set it out in the error of law decision. We do not repeat that here as it is set out in detail below and we adopt all that we have said in relation to the correct operative legal framework and the facts of the case. The re-making part of this decision is to be read alongside the error of law decision for completeness.
4. The appellant did not have leave to remain in the United Kingdom when she applied for EUSS leave on 22 March 2022 as a person with a Zambrano right to reside (the parent of a British child). However, she did so at the ‘specified date’ namely 23.00 on 31 December 2020 because at that time she had leave pursuant to Appendix FM of the Immigration Rules as the parent of a British citizen. That leave expired on 9 December 2021.
5. The respondent refused the appellant’s application on the basis that the appellant could not show that she met the requirements of the definition of a “person with a Zambrano right to reside” throughout the continuous qualifying period on which she relied so the application was refused with reference to paragraphs EU11 and EU14 of Appendix EU.
6. The First-tier Tribunal allowed the appellant’s appeal against that refusal on the grounds that the appellant had a Zambrano right to reside prior to her acquisition of Appendix FM leave, namely from 27 April 2009 until 9 September 2013. Accordingly, the First-tier Tribunal decided that entitled her to EUSS leave as a person who had at some time in the past had a Zambrano right to reside. According to the First-tier Tribunal, that meant the appellant did not need to show that she otherwise met the criteria contained within the definition of “a person with a Zambrano right to reside” as contained within Annex 1 of Appendix EU for the relevant period which must have been continuing at 23.00 on 31 December 2020 (applying the excepting paragraph at (b) at the end of the definition of a “person with a Zambrano right to reside” under the words “in addition” (see [22] of the error of law decision).
7. We found the judge to have made an error of law in that assessment. We did not find the appellant able to benefit from the excepting paragraph (b) for the reasons set out at [54]-[64] of the error of law decision below, summarised in [67] as:
“the only people able to meet the requirements of the excepting paragraph in (b) of the definition of ‘a person with a Zambrano right to reside’ are those who are able to meet the requirements of a person who had a derivative or Zambrano right to reside as defined in Annex 1 of Appendix EU to the Rules which also requires a person to show that they met those requirements at the specified date.”
8. It was not contended that the appellant was otherwise able to meet the definition of a person with a Zambrano right to reside or the requirements for leave in that capacity as contained within either paragraphs EU11 or EU14 of Appendix EU.
9. Accordingly, the appellant is not able to meet the criteria at paragraph (a)(iv) of the definition of “a person with a Zambrano right to reside” in Annex 1 of Appendix EU because she had leave to remain in the UK at 23.00 on 31 December 2020 so her appeal against the respondent’s refusal of her application has to fail.


Notice of Decision
1. The appeal is re-made and it is dismissed.

SJ Rastogi
Judge of the Upper Tribunal
Immigration and Asylum Chamber
12 January 2026


Annex 1 – the Error of Law decision
1. For ease of reference, we shall refer to the parties as they were constituted at the First-tier Tribunal so from now on Ms Asanti will be the appellant, and the Secretary of State will be the respondent.  

2. The respondent appeals the decision of a judge of the First-tier Tribunal (“the judge”) dated 17 March 2025 in which the judge allowed the appellant’s appeal against the respondent’s decision of 20 December 2022, refusing her application made under the European Union Settlement Scheme (“EUSS”) dated 22 March 2022. The appellant had applied for leave to remain as a person with Zambrano right to reside, namely as the parent of a British child who may otherwise have to leave the UK. 

Background

3. The appellant is a national of Ghana born in 1979. She arrived in the UK in January 2005 and had a British child born in 2009. There is no dispute that the respondent granted the appellant leave under Appendix FM as a parent of British Citizen from 09 September 2013 until 19 March 2016, extended twice with the last part of leave valid until 09 December 2021.

4. The appellant made an EUSS application as a spouse of an EU national in 2021. This application was refused. Following an appeal to the First-tier Tribunal, determined on the papers and promulgated on 16 March 2021, the appeal was dismissed. Thereafter, she claimed she was advised by a representative of the respondent to apply for EUSS leave as a Zambrano carer.

5. Accordingly, the appellant made this application on 22 March 2022 at which point she did not have Appendix FM leave.

6. However, the respondent refused the application because she was unable to show the following:

“you must meet the requirements of the definition throughout the continuous qualifying period in the UK in which you rely on being or having been a ‘person with a Zambrano right to reside’”

7. The respondent noted that the appellant claimed to have a continuous qualifying period from 18 March 2016 to 22 March 2022. However, as the appellant’s child acquired British citizenship, the continuous qualifying period as a person with a Zambrano right to reside would have started on 27 April 2009.

8. The application was refused with reference to EU11 and EU14 of Appendix FM because on 9 September 2013 the appellant was granted leave to remain under Appendix FM of the Rules until 18 March 2016 and then again from 3 May 2016 until 1 December 2018 and finally on 15 May 2019 until 9 December 2021 which meant her application could not succeed.
The Judge’s decision
9. The appellant’s appeal against that decision came before the judge at a hearing on 26 February 2025.

10. At [6] the judge noted the parties’ agreement that the only issue before her was whether the appellant can satisfy the rules under Appendix EU by demonstrating that she was “a person with a Zambrano right to reside”.

11. Having set out the legal framework, the judge then arrived at her findings which we set out in full given their relevance to the issues for us to determine. She did so on the basis that it was for the appellant to satisfy the Rules at the date of application [13].

“14. On the facts of the Appellant's claim at the date of application in March 2022, she no longer had Appendix FM leave, which is accepted by the Respondent. Her last, valid leave granted under Appendix FM, came to an end on the 9th of December 2021. The application under the Appendix EU was made on the 22nd of March 2022 and it is clear that she held no leave at that stage (see Sonkor (Zambrano and non-EUSS leave) [2023] UKUT OO276 (IAC)).
15. Having considered the timeline of the leave the Appellant has had, I am satisfied she has not completed a continuous qualifying period of five years under Appendix EU, therefore does not qualify for settled status. Her daughter was granted British citizenship on the 27 April 2009 and on the 9 September 2013 she was granted leave under Appendix FM. Therefore, during this period of under five years she would have had a Zambrano right to reside.
16. I go on to consider, if she is able to satisfy the conditions under EU14 as a person with a Zambrano right to reside such that she is entitled to pre-settled status.
17. Following the definition as outlined above, it is clear that at the date of application the Appellant was a person who had at some time in the past had a Zambrano right therefore in considering the definition of a ‘relevant period’ she would not have to demonstrate it was continuing at 2300 GMT on 31 December 2020. I therefore go on to find in considering the definition of a person with a Zambrano right to reside that;
- the Appellant was not an exempt person
- the Appellant is the primary carer of a British citizen child who resides in the UK; and
- the child would in practise be unable to reside in the UK, if the Appellant left the UK and
- the Appellant does not currently have leave to enter or remain in the UK
18. Therefore under EU14, condition 1, I am satisfied that at the date of application in 2022, the Appellant was eligible for limited leave, as it is clear she meets the definition of a person with a Zambrano right to reside in Annex 1 of Appendix EU.”
The Grounds of Appeal
12. The respondent sought permission to appeal on the grounds that there was a material misdirection in law on a material matter for the following reasons:
“b) … In order to succeed under Appendix EU, the Appellant is required to meet the definition of “a person with a derivative right to reside” throughout the Continuous Qualifying Period on which they seek to rely on. The Continuous Qualifying Period is required to have begun before the end of the transition period (11pm on 31 December 2020).
c) It is submitted that the Appellant does not meet either sub paragraph (a)(iv) or (c)(iii) of that definition at that date and time as she had been granted leave to remain under Appendix FM of the Immigration Rules between 9 September 2013 and 9 December 2021. It is asserted that it is not possible to start a Continuous Qualifying Period based on derivative rights after the end of the transition period. It is therefore submitted that the FTTJ has materially erred in finding that the Appellant satisfies the requirements of Appendix EU of the Immigration Rules based on her derivative rights.
d) Reliance is placed on the findings of the Upper Tribunal in Sonkor (Zambrano and non-EUSS leave) [2023] UKUT OO276 (IAC) which at headnote 2 states the following,
“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.”
e) It is therefore submitted that the FTTJ should have dismissed the appeal on the basis that the Appellant is unable to meet the requirements of Appendix EU. This is on the basis that Appellant cannot meets the definition of a “person with a derivative right to reside” contained within Annex 1 of Appendix EU.”

13. The judge granted permission against her own decision on 4 August 2025 on the following basis:
“there remains some ambiguity around whether a person who would have been entitled to Zambrano leave at some point in the past, as in this case the Appellant would have been entitled to Zambrano leave between the 27th April 2009 to the 9th September 2013 (see [15]), whether she could satisfy the definition of a person who ‘had a Zambrano right to reside’ (see definitions under Annex 1), was exempt from holding other leave especially as she did not hold leave at the date of application (similar to the facts in the case of Akinsanya v Secretary of State for the Home Department [2022] EWCA Civ 37, [2022] 2 WLR 681.”
The Hearing
14. We were provided with an error of law bundle running to 238 pages. On the morning of the hearing the Tribunal and Ms Ahmed were provided with a Rule 24 response, setting out the appellant’s position and which effectively adopted the approach identified by the judge in the grant of permission, set out above. The Rule 24 response was only filed the previous day. Ms Ferguson apologised for the late submission explaining that her solicitors had not asked for one until the day before the hearing.

15. We decided to admit the late response on the basis that it was helpful in clarifying the issues for the Tribunal to determine, but to permit Ms Ahmed time to consider the matters raised therein.

16. Before so doing we asked the parties to consider which version of the Rules apply in this appeal. It was not clear from the judge’s decision which ones were used therein, and we wanted to ensure there was no disagreement on this issue. We also asked the parties to consider to what extent there was agreement with the factual background and in particular the judge’s finding at [15] that between 27 April 2009 and 9 September 2013 the appellant would have had a Zambrano right to reside.

17. When the hearing resumed, the parties were agreed that the version of the Rules in force at the date of the respondent’s decision were the operative rules. We agree that must be right applying the decision of the House of Lords in Odelola (FC) (Appellant) v Secretary of State for the Home Department (Respondent) [2009] UKHL 25 as referred to and applied in the context of Appendix EU at [37]-[38] of Maisiri (EUSS: Zambrano; ‘Realistic Prospect’ policy) [2024] UKUT 00235. Maisiri also involved an appellant who applied before a wholesale change to the definition of ‘a person with a Zambrano right to reside’ by operation of Statement of Changes HC719 which took effect on 9 November 2022, but whose application was not decided until after that date.

18. We heard submissions from both representatives and asked several questions to ensure our understanding of both parties’ cases. At the end of the hearing, we reserved our decision.
The Legal Framework
19. Appendix EU and Appendix EU (Family Permit) is the framework introduced to implement the terms of the Withdrawal Agreement into the domestic regime following the departure of the United Kingdom from the European Union.

20. As the appellant accepts she cannot qualify for indefinite leave to remain pursuant to paragraph EU14 of Appendix EU, the operative parts of Appendix EU for the purposes of this appeal are:
“Requirements for limited leave to enter or remain other than as a joining family member of a relevant sponsor
EU3. The applicant will be granted five years’ limited leave to enter (where the application is made outside the UK) or five years’ limited leave to remain (where the application is made within the UK) where:
• A valid application has been made in accordance with paragraph EU9;
• The applicant does not meet the eligibility requirements for indefinite leave to enter or remain in accordance with paragraph EU11 or EU12, but meets the eligibility requirements for limited leave to enter or remain in accordance with paragraph EU14; and
• The application is not to be refused on grounds of suitability in accordance with paragraph EU15 or EU16.
21. EU14 says:
“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
EU14. 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 and in an application made by the required date, condition 1 or 2 set out in the following table is met:
Condition: is met where:
1. (a) The applicant is:
(i) a relevant EEA citizen; or
(ii) a family member of a relevant EEA citizen; or
(iii) a family member who has retained the right of residence by virtue of a relationship with a relevant EEA citizen; or
(iv) a person with a derivative right to reside; or
(v) a person with a Zambrano right to reside; and
(b) The applicant is not eligible for indefinite leave to enter or remain under paragraph EU11 of this Appendix solely because they have completed a continuous qualifying period of less than five years; and
(c) Where the applicant is a family member of a relevant EEA citizen, there has been no supervening event in respect of the relevant EEA citizen
2. (a) …….”
22. Annex 1 to Appendix EU contains the definitions. Of relevant part is as follows:

“person with a Zambrano right to reside
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 was granted under this Appendix or in effect by virtue of section 3C of the Immigration Act 1971; 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; or
(b) ….
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 ….” (Emphasis added)
23. ‘Continuous qualifying period’ is also defined. The definition is lengthy and complicated. Accordingly, we do not set it out here but will refer to it as required below.
Submissions
24. Ms Ahmed maintained that the continuous qualifying period relied on could not start after the specified date and took issue with the judge’s finding at [17] that she did not have to show that it continued on that date. In support of that submission, whilst noting the different factual matrix, she relied on headnotes 2 and 3 of Sonkor submitting that the guidance remains good. In relation to the grant decision and the Rule 24 response and the references in both to sub-paragraph (b) of the definition of a person with a Zambrano right to reside, she submitted that ‘a person who had a Zambrano right to reside’ is separately defined in Annex 1; the appellant is unable to meet the definition of either category and, both of them require her to meet the requirements at the specified date.

25. Ms Ferguson relied on her Rule 24 response. She submitted that, applying the provisions of EU11 the applicant needed to demonstrate an ability to meet the requirements of the Rules at the date of application. She submitted that both Akinsanya [2022] and Sonkor can be distinguished as they related to applicants who had leave in a different capacity when they made their applications to the EUSS. She submitted that the principle in Sonkor has no wider application. She submitted that the applicant appears able to benefit from an exception to the ordinary requirement that an applicant needs to show that the Zambrano relationship existed at the specified date, that exception appearing at (b) in the definition of a person with a Zambrano right to reside. She accepted that there appeared to be some conflict between that sub-paragraph and other requirements in paragraphs EU11 and EU14. When asked about the continuing period on which the applicant relied Ms Ferguson referred to the period where the requisite relationship between the applicant and her child existed and where there was no other leave in place as the judge found at [15].

Discussion

26. The above legal framework in this form and in its previous iterations have been the subject of significant litigation since its introduction. Most of the litigation arose from whether not someone was able to meet the definition of “a person with a Zambrano right to reside” in Annex 1 if they either had, or had a realistic prospect of acquiring, leave in another capacity, normally Appendix FM of the Rules. We refer to these cases collectively (if required) as the Zambrano caselaw.

27. However, this was not the issue before us. The principal issue we need to consider is whether the operative parts of Appendix EU require the appellant to have a Zambrano right to reside at the specified date in order to meet the definition of ‘a person with a Zambrano right to reside’ thereunder. It is common ground that at the specified date the appellant resided here with leave acquired under Appendix FM. Accordingly, if she is required to show that she had no such leave at that date in order to meet the definition of a person with a Zambrano right to reside, she is unlikely to be able to do so.

28. It is to be remembered that the appellant is a not an EU citizen. She is not directly within scope of the Withdrawal Agreement and her only potential protection thereunder is from any rights she may derive from her British citizen children. Her appeal before the judge at the First-tier Tribunal was on the basis that the respondent’s decision was not in accordance with the Rules as they relate to the EUSS (Appendix EU in this instance). That she is their primary carer is not an issue in this appeal and neither has the respondent ever asserted that if she leaves, the children would not be required to accompany her.

29. As for the Zambrano caselaw, we limit our discussion to four cases. The first case is Akinsanya [2022] which the Court of Appeal eventually remitted to the High Court where it was joined with another claimant and became R (Akinsanya & Anor) v SSHD [2024] EWHC 469 (Admin). In the intervening period, the Upper Tribunal promulgated Sonkor and following Akinsanya [2024] being handed down, the Upper Tribunal promulgated Maisiri.

30. As has been seen, the respondent placed particular reliance on Sonkor in the instant case. Headnote 2 thereof is set out above. It is also useful to note headnote 3 which says:
“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”.
31. Given the importance of Sonkor to the present appeal, it is useful to set out in some detail the factual matrix in Sonkor and the precise basis on which the panel in Sonkor arrived at its decision.

32. Firstly, Ms Sonkor’s application and the decision on the same were made under the previous version of the Rules, prior to HC 719 taking effect. The previous definition of a ‘person with a Zambrano right to reside’ said as follows:
“a person who has satisfied the Secretary of State, including (where applicable) by the required evidence of family relationship, that, by the specified date, they are (and for the relevant period have been), or (as the case may be) for the relevant period in which they rely on having been a person with a Zambrano right to reside (before they then became a person who had a derivative or Zambrano right to reside) they were:
(a) resident for a continuous qualifying period in the UK with a derivative right to reside by virtue of regulation 16(1) of the EEA Regulations, by satisfying the criteria in:
(i) Paragraph (5) of that regulation; or
(ii) Paragraph (6) of that regulation where that person’s primary carer is, or (as the case may be) was, entitled to a derivative right to reside in the UK under paragraph (5) regardless (where the person was previously granted limited leave to enter or remain under this Appendix as a person with a Zambrano right to reside and was under the age of 18 years at the date of application for that leave) of whether, in respect of the criterion in regulation 16(6)(a) of the EEA Regulations, they are, or (as the case may be) were, under the age of 18 years; and

(b) Without leave to enter or remain in the UK granted under another part of the Rules.” (Emphasis added)

33. We note here that, unlike the version of the Rules agreed to be the operative ones in the instant case, this definition includes in the opening paragraph express reference to the specified date.

34. As at the date of her application to the EUSS as a Zambrano carer, 19 August 2020, Ms Sonkor had leave under Appendix FM. Her application was refused because the respondent said she had a realistic prospect of acquiring further Appendix FM leave, so Ms Sonkor could not show she would have “no other means to remain lawfully in the UK”.

35. At [11] the Upper Tribunal decided that the real question was whether Ms Sonkor was able to meet paragraph (b) of the definition of a “person with a Zambrano right to reside” in Annex 1 to Appendix EU which stated that the applicant must be without leave to enter or remain granted under another part of the Immigration Rules.

36. At [13] the Upper Tribunal observed that Akinsanya [2022] did not find paragraph (b) to be unlawful and neither did the Court in Akinsanya [2022] comment upon whether the Secretary of State had misdirected herself in framing the EUSS.

37. At [14] the Upper Tribunal noted that Ms Sonkor had Appendix FM leave at the date of her application to the EUSS and that continued to the date of the hearing through the operation of section 3C of the Immigration Act 1971. Accordingly the appellant was unable to show that she “does not hold leave” granted under another part of the Rules and accordingly she was disqualified from succeeding as a Zambrano carer under Appendix EU and, at [15], noted that at [48] of Akinsanya [2022] the Court of Appeal were of the same view.

38. Akinsanya [2022], of course, also applied to the previous version of Appendix EU containing the same definition of “a person with a Zambrano right to reside “ as set out at [32] above. Accordingly, the same paragraph (b) that was the issue before the panel in Sonkar was also in issue in Akinsanya [2022] (see [32] therein).

39. In Akinsanya [2024], the amended version of the definition of “a person with a Zambrano right to reside” was in force and considered by the Court. However, the principle issue was whether the Rules excluded a person from that definition a person who had a “realistic prospect” of obtaining leave in another category. The Court held that it did not and the Guidance was wrong to say the contrary. Of relevance however to the issue before us is what Eyre J noted at [27] about the three options open to the respondent in framing that definition of which Option 3 was recommended:

“On 28th March 2022 the Defendant received a submission from her officials addressing the reconsideration of the Zambrano provisions in the EUSS in light of the decision in Akinsanya. The submission identified three options:
"Option 1: Allow any applicant who met the Zambrano requirements of the EEA Regulations, as interpreted by the Court of Appeal, at the end of the transition period to qualify for EUSS status.
Option 2: Do not allow an applicant with, at the end of the transition period, limited leave under another route or a realistic prospect of obtaining it to qualify for EUSS status as a Zambrano primary carer.
Option 3: Continue 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 obtaining such leave."”

40. At [124] (albeit under a different ground of appeal not relevant to the issues before us), he also said:

“it is of central importance to remember that before the Withdrawal Agreement came into effect the Claimants did not have a Zambrano right to reside. As the holders of leave to remain they were not Zambrano carers for the purpose of EU law. The purpose of the EUSS and of the introduction of App EU into the Immigration Rules was to provide for those who had a right to be in the United Kingdom by virtue of EU law and by reason of this country’s membership of the European Union but not for others (such as the Claimants).”

41. Both of these observations illustrate the significance of the ‘end of the transition period’. In both paragraphs, it is clear that both the respondent and Eyre J considered it a given that it is those resident in the UK exercising EU rights at the end of the transition period who are to be protected under the EUSS.

42. In Maisiri, the Upper Tribunal arrived at the same conclusion as Aknsanya [2024] on the issue of the definition of “a person with a Zambrano right to reside” albeit for slightly different reasons. The Tribunal confirmed that nothing in its decision is intended to cast doubt on ”the decision in Sonkor” [47].

43. Having considered the Zambrano caselaw, there are certain key points to note.

44. Firstly, none of the authorities expressly (or even implicitly) deal with the particular part of the definition of “a person with a Zambrano right to reside” with which we are concerned, namely (b) which we have underlined at [22] above. Furthermore, Akinsanya [2022] and Sonkor both dealt with a previous version of the Rules contrary to those in the instant case.

45. Secondly, in contrast with the appellant before us, Ms Sonkor and Ms Akinsanya had leave to remain pursuant to Appendix FM when they applied for leave as Zambrano carers under Appendix EU. Mr Maisiri did not but his application was refused on the basis that he had a realistic prospect of obtaining such leave.

46. Thirdly, none of the authorities expressly grapple with what is meant by the ‘continuous qualifying period’ or the ‘relevant period’ as contained within the version of the definition of a ‘person with a Zambrano right to reside’ relevant to this appeal. Although Sonkor states in terms that if someone has limited or indefinite leave to remain in a different capacity at the ‘relevant date’ they are incapable of being ‘a person with a Zambrano right to reside’, the phrase ‘relevant date’ is not expressly defined or discussed in the body of Sonkor. Neither did the panel expressly engage with the reference to the ‘specified date’ in the definition of a ‘person with a Zambrano right to reside’ then in force (those words do not appear in the operative version in the instant case). The error of law decision annexed to the panel’s remaking decision makes it plain at [39] that the principle issue under consideration in Sonkor was the ability or otherwise of the appellant to meet the Annex 1 definition at the date of application “and not the date of hearing or today’s date”. There was simply no discussion about the need to do so at the specified date.

47. Fourthly, none of the authorities dealt with applicants like the one in the present appeal who claimed to have had a Zambrano right of reside which started before the specified date, but who did not have one at the specified date as they held another form of leave which later ended and then an application made under Appendix EU when no such leave was held.

48. Accordingly, whilst Akinsanya [2022] is binding upon us, we do not find it to deal with the question we have to address in this appeal. Neither Sonkor nor Akinsanya [2024] are strictly binding upon us. In our judgment, the ratio in Akinsanya [2024] does not deal with the same question we are tasked to answer.

49. Accordingly, we proceed on the basis that the issue we have to decide in the appeal before us is not one for which there is direct authority. We turn later in this decision to the question of whether, and if so, the extent to which Sonkor applies to the instant case.

50. We return to the operative parts of Appendix EU. We have underlined those sections of particular relevance to the issues before us.

51. We accept that it is plain from EU14 that the applicant’s ability to meet the operative Rules is to be assessed as at the date of her application.

52. As to the continuous qualifying period on which the appellant relies, it is clear from the appellant’s skeleton argument (“ASA”) before the judge that the appellant argued that the period started on 27 April 2009. The ASA was vague as to when it ended, but accepted that the appellant had a period of leave since, (see para. 11).

53. As mentioned above, the definition of ‘continuous qualifying period’ in Annex 1 of the Rules is very difficult to understand. Below, we set it out as it applies to someone in the appellant’s position seeking to rely on a Zambrano right to reside and where there is no suggestion that there has been a break in their residence in the UK and they are in the UK at the date of application,
“a period of residence in the UK …..:
(a) Which …… began before the specified date; and
(b) during which none of the following occurred …… and
(c) which continues at the date of application, unless….”

54. It is therefore clear from the above that it is not the continuous qualifying period that potentially causes the appellant a problem as there has been no break in her residence since her arrival. Rather, it is her status here throughout that period of residence which, for the purposes of EU14 and the definition of a ‘person with a Zambrano right to reside’ relies on the meaning of ‘relevant period’ in that definition.

55. For the purposes of the definition of a ‘person with a Zambrano right to reside’, ‘relevant period’ is defined towards the end of the definition under the words “in addition”. Confusingly the drafters have used sub-paragraphs (a)-(c) despite already having used (a) and (b) in the earlier part of the definition, also as free-standing paragraphs. For the present purpose, we refer to the ones under “in addition”.

56. Sub-paragraph (a) restricts the ‘continuous qualifying period’ from the broader definition as found elsewhere in Annex 1 (see [53] above) to the part of that on which a person relies to meet the definition. In other words, the part of their residence which started before the specified date (see [53]) but during which they were able to meet the requirements of a Zambrano carer (as set out in (a)(i)-(v) or (b)(i)-(vi) in the preceding part of the definition). Sub-paragraph (b) then specifies that the relevant period must have been continuing at the specified date unless the person relies on “being a person who had a derivative or Zambrano right to reside or a relevant EEA family permit case”.

57. Elsewhere in Annex 1, phrases which have a separate definition appear in bold. For example in the definition of a ‘person with a derivative right to reside’ the phrase ‘relevant EEA family permit’ appears in bold, whereas it does not in the definition of a ‘person with a Zambrano right to reside’.

58. Ms Ahmed submitted that the phrase ‘a person who had a Zambrano right to reside’ is defined in Annex 1. In fact the definition covers a ‘person who had a derivative or Zambrano right to reside’. That says,

“person who had a derivative or Zambrano right to reside
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”
59. The appellant has not claimed to meet this definition and it is clear on the facts of her case, she is unable to do so.

60. We have considered whether the appellant is entitled to rely on the excepting provisions within (b) of the definition of ‘a person with a Zambrano right to reside’ on the basis of the period of residence to which the judge found her to have that status namely between 27 April 2009 to 9 September 2013. That is the position the judge took at [17] when she referred to the appellant being a person “who at some time in the past had a Zambrano right’. The judge then referred to the definition of ‘relevant period’ and decided the appellant was able to benefit from the excepting provisions of sub-paragraph (b).

61. Without underplaying how difficult it is to navigate Appendix EU and, particularly, the definition section of Annex 1, we are persuaded the judge was in error to have interpreted sub-paragraph (b) in the way she did at [17].

62. We are persuaded that the use of the words ‘person who had a derivative or Zambrano right to reside’ therein is intended to refer back to the definition of that phrase in Annex 1 notwithstanding that it does not appear in bold and that the appellant did, in fact, have a period where she was resident in the UK in a Zambrano capacity in the past.

63. In our judgment, to decide otherwise would lead to even more difficulty in interpreting and understanding Appendix EU. Where a phrase is specifically defined within the Appendix and the respondent then replicates that form of wording elsewhere in the same Appendix, it can be assumed that the respondent intended them to have the same meaning and it must be interpreted accordingly.

64. We were not persuaded by Ms Ferguson’s submission at para. 8 of the Rule 24 response in which she argued that the fact applicants in this category have been permitted to use the route until August 2023 has any bearing on the issue. Ms Ferguson relied on this as it “further suggests it is the date of the application and not the end of the transition period that is operative”. We do not follow completely the rationale of this argument, but in any event, the construction of the Rules as we have set them out make it plain that it is only a very limited cohort of people applying under this route that are able to take advantage of the excepting provisions in sub-paragraph (b) and the appellant does not fall into that category.

65. Returning to Sonkor, our decision does not rely on it. We have not treated ourselves as bound by the guidance provided therein and, of course we are not.

66. In our judgement, the guidance set out in Sonkor is good law for the purposes of those people who had leave in another capacity at the date they applied to the EUSS for leave as a Zambrano carer. Although Sonkor was decided under a previous version of the Rules no longer in force, the version which replaced them, and which has remained largely unchanged in the operative parts say the same thing. In both definitions of a ‘person with a Zambrano right to reside’ a person must not “have leave to enter or remain in the UK” in a non-EUSS capacity.

67. As Sonkor was not decided under the version(s) of Appendix EU in force since HC 719 took effect, it did not consider the exceptions to the requirement that a person had to show compliance with the definition as at 23.00 on 31 December 2020. However, as demonstrated, the only people able to meet the requirements of the excepting paragraph in (b) of the definition of ‘a person with a Zambrano right to reside’ are those who are able to meet the requirements of a person who had a derivative or Zambrano right to reside as defined in Annex 1 of Appendix EU to the Rules which also requires a person to show that they met those requirements at the specified date.

68. Accordingly, we are satisfied that the guidance at headnote 2 of Sonkor also applies to the version of Appendix EU in force since and continues to apply to anyone who seeks leave under Appendix EU as a person with a Zambrano right to reside thereunder.
Decision on the appeal
69. To the extent that the judge decided that the appellant met the requirements of Appendix EU, we are satisfied she made a material misdirection of law. It follows that the decision must be set aside with the findings of fact preserved.

70. As to disposal, the parties were agreed that in the event re-making was required, given it involved only the application of the law, the appeal could remain in the Upper Tribunal. In fact, Ms Ferguson’s position was that we could proceed directly to remaking.

71. However, Ms Ahmed submitted that for the purposes of the remaking she relied on the guidance to which she referred at the hearing. As that guidance had not been served, Ms Ferguson had not had the opportunity to consider it, it was agreed that following the preparation of the error of law decision (and if an error of law was found), the appellant would be afforded seven days to make any submissions with a further seven days to the respondent to reply (if so advised) before the remaking decision is made.

72. We observe that the only issue for remaking is the application of the law as we have found it to mean to the facts of this case. In other words, whether the appellant is able to show any ability to meet the requirements of the Rules given that, at the specified date, she held leave pursuant to Appendix FM.

73. It only came to our notice after the hearing that the respondent’s guidance to which Ms Ahmed referred post-dated the date on which the respondent made her decision on the appellant’s application. For that reason alone, it is of no relevance to that decision. In any event, thus far the guidance has played no part in our decision. There was no application for it to be admitted and no request for it to be so. We have not read it.

74. Accordingly, whilst we do not depart from the directions, we would be surprised if there was a need for either party to make submissions on the guidance for the purposes of the re-making of the decision.

75. In the event that the appellant does not reply within 7 days, we will proceed to re-make the decision on the papers without further reference to the parties. If any response is received, the submissions will be placed before us and considered prior to the re-making of the appeal which will be done on the papers.