[2024] UKUT 00235 (IAC)

The appellant is a Zimbabwean national who was born on 1 December 1984. He arrived in the United Kingdom as a visitor in 2004. He then overstayed his leave to enter. He claimed asylum in 2009 but that claim was refused and his appeal against that decision was dismissed later that year.

On 25 June 2021, the appellant applied for leave to remain. The application was for leave under the EU Settlement Scheme as a person with a Zambrano right to reside. The fifty-page application form which he completed with the assistance of his representatives included the following information. The appellant stated that he believed that he was eligible for pre-settled status. He stated that he had completed a continuous qualifying period of less than five years as a person with a Zambrano right to reside, or a combined qualifying period of less than 5 years with other types of residence. He stated that he was applying as a joint primary carer who shared responsibility for a British citizen child or dependent British citizen adult with one other person. He named the British citizen as his daughter, who was born in London on 9 October 2016. He named the other joint primary carer as Ms Joseph, who is his partner and his daughter’s mother. Ms Joseph is settled in the United Kingdom.

The covering letter which accompanied the appellant’s application form stated that Ms Joseph and the appellant were unmarried partners. It stated that they shared equal responsibility for looking after their daughter. It was said that the appellant’s daughter would not be able to remain in the UK in the event that he was required to leave, largely because Ms Joseph had a registered disability in the form of rheumatoid arthritis which caused significant pain. She also had mental health problems. The appellant’s wife and daughter were therefore ‘entirely dependent’ on the appellant for their care. She would be forced to leave the UK with him in the event of his removal.

The covering letter also included a section in the following terms (the emphasis is in the original):

“On 9 June 2021 the High Court in R (Akinsanya) v Secretary of State for the Home Department [2021] EWHC 1535 (Admin) ruled that the Home Office had misunderstood EU law and that Zambrano carers rights to reside were not affected by a grant of limited leave to remain, or by the possibility of getting limited leave to remain.

Your guidance also states that Zambrano carers cannot have EUSS leave to remain if they can get other leave to remain. In R (Akinsanya) v Secretary of State for the Home Department, Mr Justice Mostyn quashed that unlawful guidance.

Accordingly, our client satisfies the requirements under Regulation 1 6 of the EEA and therefore the requirements under Appendix EU. Our client is the primary carer of a British Citizen national, who resides in the UK and his British Citizen daughter would be unable to remain in the UK if he left the UK for an indefinite period.”

The application was refused by the Secretary of State on 18 January 2023. The respondent did not accept that the appellant had been a person with a Zambrano right to reside in the UK before the specified date (31 December 2020). That was because the appellant’s daughter would not in practice have been compelled to leave the UK if the appellant left the UK for an indefinite period. In turn, that was because the Secretary of State considered it likely that the appellant would have qualified for leave under Appendix FM of the Immigration Rules if he had applied for the same. The respondent considered that the appellant had “a realistic prospect of being granted Appendix FM leave as a parent of a British citizen”. The respondent cited the decision of the Court of Appeal in Velaj v SSHD [2022] EWCA Civ 767; [2023] QB 271 as being supportive of his decision.