[2024] UKUT 00235 (IAC)

This is not a case about applicants who already have leave to remain which was granted outside the residence scheme Immigration Rules and who contend that they are eligible for leave to remain as a Zambrano carer. The Upper Tribunal has already given guidance on individuals in that category in Sonkor (Zambrano and non-EUSS leave) Ghana [2023] UKUT 276 (IAC), and nothing we say in this decision is intended to cast doubt on that decision.

This case concerns, instead, applicants for leave to remain under paragraph EU11 or EU14 who do not have leave to remain but who, on the Secretary of State’s case, have a “realistic prospect” of securing leave under other provisions of the Rules, primarily Appendix FM.

We note that Mr Deller does not contend simply that a realistic prospect of securing leave to remain on an alternative basis is determinative of a Zambrano carer’s application, in the same way that the possession of extant leave to remain would be. His case, as summarised at [45] of his skeleton argument, is put in this way:

“The SSHD does not contend that Velaj is authority that the Zambrano circumstances do not obtain where there is a realistic prospect of the primary carer acquiring LTE/R under the wider Immigration Rules. Rather, he contends that it is clear, following Velaj, and in line with the above case law, that the assessment under sub-paragraph (a)(iii) requires a fact-based enquiry looking at whether, if the Appendix EU application is refused:

a.

the primary carer, in fact (i.e. more likely than not), will be required to leave the UK for an indefinite period; and, if so

b.

the British citizen would be unable, in practice, to remain in the UK, the EEA or Switzerland.”

That submission closely mirrors the terms of the guidance which we have reproduced above, and this case is therefore concerned not only with the correctness of Mr Deller’s submissions, but also with the correctness of the guidance upon which it is based.

We decided following the hearing in January that the Secretary of State’s submissions, and the guidance which we have cited immediately above, were wrong as a matter of law. We came to that conclusion for three reasons, which were as follows.

Firstly, that the natural and ordinary meaning of the words used in the Immigration Rules did not suggest that the prospect of securing leave in another (non-Zambrano) category was a relevant consideration. Secondly, that the Secretary of State’s approach was not supported by authority. And, thirdly, that the “realistic prospect” test was likely to be unfair and unworkable in practice, whether for caseworkers or judges on appeal. We will explain those reasons in greater detail before turning to Eyre J’s decision in Akinsanya & Aning-Adjei and considering the correctness of our own initial conclusions in light of that decision and the submissions which were made about it.