[2024] UKUT 00235 (IAC)

The circumstances of the first claimant before Eyre J are set out at [56]-[60] of his judgment. She was a Nigerian national who held leave to remain under Appendix FM but applied during the currency of that leave for ILR under Appendix EU as a Zambrano carer. The refusal of the application was ultimately quashed by the Court of Appeal. The Secretary of State reconsidered the application and refused it again on 22 July 2022, relying on the fact that she held leave to remain under Appendix FM.

The circumstances of the second claimant are set out at [61]-[63]. She was a Ghanaian citizen who held leave to remain under Appendix FM. She applied during the currency of that leave for ILR under Appendix EU. The application was refused by reference to the fact that the applicant enjoyed leave to remain. The application was reconsidered following the Court of Appeal’s decision in Akinsanya. ILR was again refused, this time on the basis that she had not completed five years as a Zambrano carer because the possession of Appendix FM leave disentitled her to that status.

It was submitted by both claimants that Eyre J should consider the realistic prospect test, whereas the Secretary of State submitted that any such consideration would be academic, since both claimants actually had leave to remain: [13] and [66]. Eyre J resolved that dispute in favour of the claimants, for reasons he gave at [66]. It was, he said, necessary to resolve whether the respondent had misunderstood the law in formulating the Immigration Rules and the Guidance in order to determine whether any such misunderstanding had any effect on the positions of the claimants.

Having resolved that question in favour of the claims, Eyre J considered the realistic prospect test, which had been introduced after the Court of Appeal’s decision in Velaj v SSHD, in the sixth version of the guidance. For reasons he gave at [67]-[110], he concluded that the effect of the authorities was clear; “the Zambrano right is only excluded where the carer has been granted leave to remain”. The realistic prospect test had not been considered in the authorities and the submission that a realistic prospect of obtaining leave excluded the Zambrano right was based on a misunderstanding of the law applicable before the departure of the United Kingdom from the European Union: [109]-[110].

For reasons he gave in the next two paragraphs of his judgment, however, Eyre J concluded that the respondent’s misunderstanding had only affected version 6 of the policy, and had not affected the terms of the definition in Appendix EU of a person with a Zambrano right to reside. His reasoning was as follows:

“[111] In issuing version 6 of the Guidance the Defendant was proceeding on the basis of a mistaken belief that a person who did not have leave to remain but had a realistic prospect of obtaining such leave could not be a Zambrano carer for the purposes of EU law. That misunderstanding was combined with and flowed from a flawed understanding of the effect of the decision in Velaj. That misunderstanding affected the terms of version 6 of the Guidance and the way in which paragraph (a)(iii) of the Annex 1 definition was applied.

[112] The misunderstanding did not, however, affect the terms of the definition in App EU of a person with a Zambrano right to reside. Those terms were entirely consistent with the position under EU law and as matters had been before the Withdrawal Agreement came into effect. In particular paragraph (a)(iv) of the definition was entirely consistent with EU law in excluding from those with a Zambrano right those who already had leave to remain under a different provision. Similarly, the terms of paragraph (a)(iii) of the definition were entirely consistent with the Zambrano jurisprudence.”

Eyre J went on to consider the impact of those conclusions on the cases of the claimants. He rejected the claimant’s contention that he should quash the decisions in their cases because he concluded that the misunderstanding had not had any impact, since both claimants had leave under Appendix FM and “neither claimant was a Zambrano carer on a correct understanding of EU law.”: [117]. It was a “misunderstanding as to a matter of law which arose after the terms of App EU were drawn up; which was not reflected in the version of the Guidance which was current at the time of the decisions affecting the claimants; and which had no relevance to the circumstances of those decisions…”

We need not refer to the way in which Eyre J resolved the remaining arguments, since those conclusions have no bearing on the matters in issue before us. We will record, however, that the court’s final order included the following term:

“(3)

In relation to the Realistic Prospect Issue: (a) The Court’s judgment sets out the Court’s conclusion that in issuing version 6 of his Guidance to caseworkers, “EU Settlement Scheme: person with a Zambrano right to reside”, the Defendant erred in concluding that a person who did not have leave to remain but had a realistic prospect of obtaining alternative leave could not be a Zambrano carer for the purposes of EU law.”