By Alex Papasotiriou – Immigration Barrister
In This Article
1. Introduction
2. The Home Office Guidance on EU Settlement Scheme
3. The EU Settlement Scheme Application
4. The Appeal Before the First-Tier Tribunal
5. The Appeal Before the Upper Tribunal
6. Comment
7. Contact Our Immigration Barristers
8. Frequently Asked Questions
9. Glossary
10. Additional Resources
1. Introduction
In its judgment in Maisiri (EUSS; Zambrano; ‘Realistic Prospect’ policy) [2024] UKUT 00235 (IAC) promulgated on 21 June 2024 and reported on 16 August 2024, the Upper Tribunal confirmed that it’s not incumbent on a decision-maker contemplating an EUSS application from an individual with a Zambrano proper to reside to evaluate whether or not the applicant has a practical prospect of securing depart to stay below a special provision of the Immigration Guidelines. Insofar because the Residence Workplace’s related steerage purports in any other case, the Higher Tribunal held it’s improper.
I represented the appellant earlier than the First-Tier Tribunal and the Higher Tribunal, the place he had the position of the respondent following an enchantment by the Secretary of State for the Residence Division (‘SSHD’), on directions from Alex Beadon of Authorized Rights Partnership.
2. The Residence Workplace Steerage on EU Settlement Scheme (EUSS)
Earlier than I set out the Higher Tribunal’s reasoning, some context is important. On 14 December 2022, the SSHD revealed the sixth model of its steerage to caseworkers titled EU Settlement Scheme: person with a Zambrano right to reside. This model first launched the ‘realistic prospect’ take a look at as a element of the ‘compulsion test’ within the definition of ‘person with a Zambrano right to reside’ in Annex 1 of Appendix EU to the Immigration Guidelines. The steerage suggested caseworkers that, when assessing whether or not the British citizen, of whom an applicant is the first carer, would in apply be unable to reside within the UK, the EEA or Switzerland if the applicant the truth is left the UK for an indefinite interval (the ‘compulsion test’), a ‘2-step consideration’ was required:
First, you have to think about whether or not the applicant can be required to go away the UK for an indefinite interval if their EU Settlement Scheme software as a ‘person with a Zambrano right to reside’ is refused.
This contains an evaluation of whether or not the applicant both has or might receive lawful immigration standing. If, because of the refusal of their EU Settlement Scheme software, the applicant wouldn’t the truth is depart the UK for an indefinite interval, then the applicant won’t meet this criterion.
You need to base your evaluation on the applicant’s particular person circumstances. Some examples of how you can strategy this evaluation are set out under. These are:
- The applicant used to have Appendix FM depart
- The applicant has since been granted Appendix FM depart
- The applicant was beforehand refused below Appendix FM or Article 8 ECHR
- The applicant has by no means utilized below Appendix FM or Article 8 ECHR
When you conclude the applicant wouldn’t the truth is be required to go away the UK for an indefinite interval, then the British citizen would have the ability to proceed to reside within the UK. Consequently, this criterion wouldn’t be glad.
[…]
Second, if you happen to conclude the applicant would the truth is be required to go away the UK for an indefinite interval, you have to think about whether or not this implies the British citizen would in apply be unable to reside within the UK, the EEA or Switzerland: see Different care preparations.
The steerage appeared to attribute this strategy to the Courtroom of Enchantment’s judgment in Velaj v SSHD [2022] EWCA Civ 767 (31 Might 2022), the place it was held that the compulsion take a look at requires a fact-based enquiry and shouldn’t be primarily based on a hypothetical, assumed or counter-factual premise. The next variations of the steerage, together with the current version 8.0, maintained this strategy.
3. The EU Settlement Scheme (EUSS) Software
The appellant in Maisiri (I’ll confer with the events as they had been earlier than the First-Tier Tribunal consistent with the Higher Tribunal’s judgment) was a nationwide of Zimbabwe, who had arrived within the UK in 2004 and overstayed. He claimed asylum in 2009 however he was unsuccessful. On 25 June 2021, the appellant utilized for restricted depart to stay (‘pre-settled status’) below Appendix EU as an individual with a Zambrano proper to reside, on the premise that he was the joint major carer of his British citizen daughter, born on 9 October 2016. The opposite joint major carer, the appellant’s associate and his daughter’s mom, was settled within the UK. The appliance said that the appellant’s daughter can be unable to stay within the UK if he left, as she was depending on him for her care as a consequence of her mom affected by arthritis, inflicting continual ache, and psychological well being issues.
The appliance was refused on 18 January 2023. The choice-maker didn’t settle for that the appellant had been a ‘person with a Zambrano right to reside’ as a result of it was seemingly that the appellant would have certified for depart below Appendix FM if he had utilized for it. Because of this, it was thought-about that his daughter would have been in a position to reside within the UK, the EEA or Switzerland. Successfully, having not taken situation with the appellant’s daughter’s incapability to reside within the UK in his absence, the caseworker, following the strategy within the steerage and citing Velaj, disputed that the appellant can be required to go away the UK regardless of having no depart to enter or stay and being answerable for removing. As an alternative, the caseworker thought-about that the appellant “had a realistic prospect of being granted Appendix FM leave as a parent of a British citizen”, which was discovered to be negatively determinative of the end result of the appliance.
4. The Enchantment Earlier than the First-Tier Tribunal
An enchantment was made in opposition to this refusal and it got here earlier than First-Tier Tribunal Choose Ripley, at Hatton Cross, on 18 August 2023. The SSHD was not represented at that listening to. I ought to add that, initially of the (public) listening to, Choose Ripley expressed her shock concerning the dearth of judicial authority on the SSHD’s strategy, on condition that it had been eight months because the steerage had first been revealed. Having thought-about the skeleton argument and oral submissions, Choose Ripley thought-about the matter herself within the absence of authority. In her reserved determination, she confirmed her acceptance of the appellant’s arguments. She distinguished, on one hand, between circumstances the place the third-country nationwide applicant enjoys a proper to reside below home legislation and the place, consequently, following Akinsanya v Secretary of State for the Home Department [2022] EWCA Civ 37, the Zambrano proper doesn’t come up and, then again, circumstances the place the applicant doesn’t have equivalent to proper however might apply for one. Choose Ripley held that there was a scarcity of European authority to help the SSHD’s steerage and the proposition relied on, which left the appellant weak to removing. It was additionally held that the drafting of Appendix EU didn’t help the that means sought to be attributed to it by the SSHD’s steerage. Having concluded that the appellant meets the definition of a ‘person with a Zambrano right to reside’ and satisfies the eligibility necessities for ‘pre-settled status’, Choose Ripley allowed the enchantment on the premise that the choice was not in accordance with the provisions of Appendix EU.
5. The Enchantment Earlier than the Higher Tribunal
The SSHD sought and obtained permission to enchantment to the Higher Tribunal, pleading that Choose Ripley’s determination was improper in legislation. It was mentioned that the chance of constructing a profitable software for depart below Appendix FM was not a proper requirement however a part of the detailed factual matrix to which the necessities of the Guidelines needed to be thought-about.
Following a listening to on 22 January 2024 and written submissions on the judgment of Eyre J in R (Akinsanya & Aning-Adjei) v SSHD [2024] EWHC 469 (Admin) (‘Akinsanya No2’), revealed on 11 March 2024, the Higher Tribunal panel promulgated its determination on 21 June 2024, dismissing the SSHD’s enchantment.
In its judgment, the Higher Tribunal panel confirmed that, following the listening to in January, it had concluded that the SSHD’s submissions and related steerage, had been improper as a matter of legislation, for 3 causes:
- Firstly, that the pure and bizarre that means of the phrases used within the Immigration Guidelines didn’t counsel that the prospect of securing depart in one other (non-Zambrano) class was a related consideration. Secondly, that the Secretary of State’s strategy was not supported by authority. And, thirdly, that the “realistic prospect” take a look at was more likely to be unfair and unworkable in apply, whether or not for caseworkers or judges on enchantment. We are going to clarify these causes in larger element earlier than turning to Eyre J’s determination in Akinsanya & Aning-Adjei and contemplating the correctness of our personal preliminary conclusions in gentle of that call and the submissions which had been made about it.
The Higher Tribunal held that the ‘realistic prospect’ take a look at was neither explicitly required by the Immigration Guidelines, nor might such a requirement be learn into them. The main target of the compulsion take a look at set out within the definition of ‘person with a Zambrano right to reside’ in Annex 1 of Appendix EU is ‘on the present reality of the case, and not on alternative hypotheses of what might happen in the event that an alternative route was explored.’
Regardless of the SSHD’s intention to replicate settled authority on the eligibility of Zambrano carers in formulating the Immigration Guidelines, the Higher Tribunal didn’t discover any actual help for the ‘realistic prospect’ take a look at in any of the home or European authorities, notably Velaj, on which the SSHD’s steerage relied on.
Moreover, it was held that the sensible prospect take a look at was unfair, because it required an applicant to show a matter which was not identified to be in situation, and unworkable in apply, each on the preliminary decision-making stage and on enchantment.
The Higher Tribunal panel held that Eyre J’s judgment in Akinsanya No2 bolstered their view that the sensible prospect take a look at was not a part of the factual evaluation required by Appendix EU, having reached the identical conclusion as Eyre J, albeit for barely totally different causes:
- As we concluded after the listening to, with out the good thing about Eyre J’s evaluation, nothing in Velaj v SSHD or any of the sooner authorities helps the ‘realistic prospect’ strategy within the steerage. Correctly understood, nothing within the authorities helps the view {that a} Zambrano proper which has in any other case already come into existence (see Sanneh v Secretary of State for Work and Pensions [2015] EWCA Civ 49; [2016] QB 453) might be denied by reference to the mere risk (or chance) of the carer securing depart to stay. The circumstances in Velaj v SSHD had been wholly distinguishable, as a result of there might be no suggestion that the British citizen can be compelled to go away the UK. Right here, probably the most that may be mentioned by the Secretary of State is that there’s some risk that depart would possibly, on software, be granted to the appellant, though the premise upon which he reached that conclusion was primarily based on a misunderstanding of Appendix FM.
The claimants’ refusals in Akinsanya No2 had been reached on the premise that they, opposite to the appellant in Maisiri, had held depart to stay below Appendix FM, and their judicial assessment problem was finally unsuccessful for that motive. Nonetheless, Eyre J held that it was related to think about whether or not, earlier than the Withdrawal Settlement got here into impact, the Zambrano proper to reside prolonged to individuals who had not been granted depart to stay below the Immigration Guidelines however who would have had an actual prospect of acquiring such depart if they’d utilized for it. He held that “to the extent that the revised App EU and the Guidance were based on the view that a realistic prospect of obtaining leave excluded the Zambrano right they were based on a misunderstanding of the law applicable before the departure of the United Kingdom from the European Union.”
The Higher Tribunal panel famous from the fabric which was earlier than Eyre J that the SSHD had particularly opted, when framing the Zambrano provisions in Appendix EU in gentle of the Courtroom of Enchantment’s judgment in Akinsanya, to “continue to exclude from EUSS eligibility under the Zambrano category those with limited leave under another route at the end of the transition period, but include those with, at that point, a realistic prospect of obtaining such leave.” This was held to strengthen the Higher Tribunal’s first conclusion, reached following the January 2024 listening to, in relation to the development of the Guidelines:
The Immigration Guidelines had been deliberately framed in order to incorporate these with a practical prospect of acquiring depart below one other route, and it was solely within the subsequent steerage, which was issued because of the Secretary of State’s gloss on Velaj v SSHD, that the sensible prospect take a look at was mentioned to be part of the evaluation. The development of the Guidelines which the Secretary of State now advances, subsequently, is opposite to his intention on the time the Guidelines had been framed. (para 92)
The abstract of the Higher Tribunal’s determination and reasoning is about out in paragraph 93 of its judgment:
- We conclude, in abstract, that it’s not incumbent on a choice maker who’s contemplating the appliance of an individual who is claimed to have a Zambrano proper to reside to evaluate whether or not that individual stands a practical prospect of securing depart to stay below one other provision of the Immigration Guidelines, together with Appendix FM. The Secretary of State’s steerage entitled EU Settlement Scheme: individual with a Zambrano proper to reside has been improper in suggesting in any other case from 14 December 2022 so far. That strategy was not supposed when the related provisions of Appendix EU of the Immigration Guidelines had been framed, and isn’t supported by the pure and bizarre that means of the Guidelines, or by the home and European authorities which pre and submit date the promulgation of these Guidelines. The appliance of the sensible prospect strategy within the steerage is probably going in any occasion to present rise to actual issue in apply, whether or not initially or on enchantment.
In paragraphs 94 and 95, the Higher Tribunal makes a closing commentary, stemming from the closure of the Zambrano path to new candidates as of August 2023. The panel stresses that, within the occasion that an individual’s EUSS Zambrano enchantment is dismissed on the grounds that there’s a sensible prospect of acquiring depart below Appendix FM, they usually subsequently make a paid software for depart below Appendix FM, which is finally unsuccessful, they are going to be unable to make one other legitimate software as a Zambrano carer as a result of the route has closed. As such, the Higher Tribunal states there may be each motive to not dismiss the enchantment on this foundation, and highlights the potential for an enchantment being stayed while an software below Appendix FM is determined.
It needs to be famous that the Higher Tribunal panel has twice certified this commentary: paragraph 94 commences with “[i]f we are wrong with these conclusions”, and paragraph 95 contains the assertion “[i]f what we have said in the preceding paragraphs does not represent the law”. The panel additionally confirmed that “a pending appeal against the adverse decision under Appendix EU should be decided on the basis of the actual facts, as and when they are known”. It’s subsequently clear that the suggestion of an enchantment being stayed would have solely been related within the occasion that the Higher Tribunal’s determination had been reversed or overruled, which it has not. The Higher Tribunal has dominated that the SSHD’s strategy will not be supported by both the present development of the Guidelines, or home and European jurisprudence, and that the ‘realistic prospect’ take a look at has no half within the compulsion take a look at. Its remarks in paragraphs 94 and 95 are, subsequently, clearly made within the various. Even when the ‘realistic prospect’ evaluation had been acceptable, the hazard by which appellants can be positioned if their appeals had been dismissed earlier than consideration of another software for depart, in view of the closure of the Zambrano route, would have left them in an untenable place.
Consequently, I don’t learn paragraphs 94 and 95 as both having binding power, or as diluting the Higher Tribunal’s conclusions set out in paragraph 93. Any suggestion on the contrary is, in my opinion, sure to fail. The headnote of the judgment undoubtedly confirms that the decision-maker contemplating both the appliance or the enchantment of an individual with a Zambrano proper to reside will not be required to think about whether or not that individual has a practical prospect of securing depart to stay below one other provision of the Guidelines.
Remarkably, the steerage of 14 December 2022 will not be the primary time that the SSHD has formulated such an strategy to EUSS Zambrano claims. Even previous to the UK’s withdrawal from the European Union and the introduction of the EUSS, the SSHD has refused circumstances on the premise that the Zambrano circumstances didn’t receive except there had been a previous try to safe depart below Article 8 ECHR. This was primarily based on a passage from Irwin LJ’s judgment in Patel v The Secretary of State for the Home Department [2017] EWCA Civ 2028, at paragraph 76:
Fairly quite a lot of years in the past, Parliament selected to abrogate the historic strategy that marriage to a British citizen would convey, in impact routinely, residence in Britain for the partner. No such computerized consequence now follows, see s.6(2) of the British Nationality Act 1981 and s.2 of the Nationality, Immigration and Asylum Act 2002. Those that marry a British citizen and have youngsters, with out having (or buying) depart to stay, achieve this on the threat that they might be compelled to go away the nation, dealing with the actual quandary that arises for these households. The Zambrano precept can’t be thought to be a back-door path to residence by such non-EU citizen mother and father.
In fact, as with Velaj, the ratio of Patel didn’t have the that means that the SSHD sought to import to it. That the Zambrano precept can’t be thought to be a back-door path to residence by non-EU citizen mother and father doesn’t replicate a requirement that such mother and father try to receive depart on a special foundation earlier than the fitting can come up. It merely signifies that the Zambrano proper stemmed from the fitting of an EU nationwide, below the Treaties, to not be disadvantaged of the advantages of their EU nationality by being compelled to go away the EU. The main target was on stopping the detriment to the EU nationwide occasioned by the removing of their major carer(s), versus the preservation of household life (though the latter was additionally related within the case of youngsters, per Chavez-Vilchez and Others (Union citizenship – Article 20 TFEU – Access to social assistance and child benefit conditional on right of residence in a Member State : Judgment) [2017] EUECJ C-133/15 and the Supreme Courtroom’s judgment in Patel v Secretary of State for the Home Department [2019] UKSC 59).
Equally, in Sanneh v Secretary of State for Work and Pensions [2015] EWCA Civ 49, the Courtroom of Enchantment rejected the Secretary of State’s submission that the Zambrano proper solely arises the place there may be an imminent prospect of removing, versus all through the interval throughout which an individual is answerable for removing, with Elias LJ discovering it “barely coherent”. The above examples, along with the circumstances set out in Maisiri, show a persistent misunderstanding with regard to the scope of the Zambrano proper on the a part of the SSHD.
Sadly, although Maisiri has been promulgated for over two months and reported for over 3 weeks on the time of writing, the SSHD has but to replace its steerage consistent with the Higher Tribunal’s findings. The ‘realistic prospect’ take a look at stays a part of the steerage, the present model of which (8.0) was revealed on 15 August 2023. Because of this, the steerage doesn’t replicate the right authorized place and is illegal, per the Supreme Courtroom’s judgment in R (A) v Secretary of State for the Home Department [2021] UKSC 37. Nonetheless, till it’s both amended, withdrawn, declared illegal or quashed, the chance that decision-makers apply the ‘realistic prospect’ take a look at, opposite to the Higher Tribunal’s judgment in Maisiri, stays excessive. In flip, EUSS Zambrano candidates might have their functions refused and appeals dismissed on the premise of a take a look at that’s held to have been improper from its inception.
What occurs then, to these people who’ve both already had or who would possibly, sooner or later (supplied that they made an software by 8 August 2023, except they already maintain pre-settled standing or a related EUSS household allow), have their functions refused on this foundation? Except their enchantment rights have been exhausted, there’s a risk of an out-of-time enchantment with an software to increase time elevating the brand new improvement in case legislation with Maisiri, coupled with the closure of the Zambrano EUSS route. As cheap as this can be in precept, it can’t be assured that such functions might be granted or that such appeals might be instituted. Additional, this isn’t an possibility for people whose enchantment rights have already been exhausted, notably following the curtailment of Cart JR by the Judicial Evaluation and Courts Act 2022.
In my opinion, it’s the SSHD’s accountability to offer restitutio advert integrum to these people whose functions for depart below the EUSS had been refused on the premise that was deemed improper by the Higher Tribunal in Maisiri. This could contain a minimum of restoring them to the place by which they might have been, had the SSHD not erred in its consideration of their functions.
For skilled recommendation and help with appeals and judicial review functions, contact our immigration barristers in London on 0203 617 9173 or full our enquiry type under.
