[2024] UKUT 00235 (IAC)

It will be necessary at a later stage in this decision to say something about the development of the respondent’s published policy. For the time being, it suffices to note that the relevant policy is entitled EU Settlement Scheme: person with a Zambrano right to reside. The current version is version 8.0, which was published on 15 August 2023.

Version 6.0 of the guidance was published on 14 December 2022. It was that version of the guidance which introduced, for the first time, the “realistic prospect” assessment with which we are concerned. The relevant parts of the guidance have not changed since that date, and are as follows.

Section 3 on page 23 of the current guidance is entitled “Eligibility – Zambrano primary carer”. It requires a caseworker to adopt the following three stage test:

“Where the applicant relies on being a Zambrano primary carer and meets the initial eligibility requirements in section 2 of this guidance, you must then consider the following 3 additional stages.

These are:

• stage 1: British citizen resides in the UK: assessing whether the person for whom the applicant claims to be the primary carer is a British citizen who resides in the UK

• stage 2: primary carer: assessing whether the applicant is the primary carer of the British citizen

• stage 3: British citizen unable to reside in the UK, the EEA or Switzerland:

assessing whether, in practice, the British citizen would be unable to reside in the UK, the EEA or Switzerland if the applicant was in fact required to leave the UK for an indefinite period

The applicant must meet these 3 stages for the whole continuous qualifying period in the UK, which began before the specified date, in which they rely on having been a ‘person with a Zambrano right to reside’ in order to be eligible for leave under the scheme as such a person.”

The guidance on the third stage of that process appears at page 28 of the current guidance. It states:

“The third additional stage is to assess whether, in practice, the British citizen would be unable to reside in the UK, the EEA (the 27 EU Member States, other than the UK when it was a member, together with Iceland, Liechtenstein and Norway) or Switzerland if the applicant were in fact required to leave the UK for an indefinite period.

As held by the Court of Appeal in Velaj v SSHD [2022] EWCA Civ 767, this assessment requires a fact-based enquiry looking at whether, in practice, the British citizen would be unable to remain in the UK, an EEA Member State or Switzerland, if the applicant were in fact required to leave the UK for an indefinite period.”

On the same page, under the sub-heading “Could the British citizen live in the UK?”, there is further reference to the Court of Appeal’s judgment in Velaj v SSHD. This section requires decision makers to consider “whether the applicant would be required to leave the UK for an indefinite period if their EU Settlement Scheme application as a ‘person with a Zambrano right to reside’ is refused”. It continues:

“This includes an assessment of whether the applicant either has or could obtain lawful immigration status. If, as a result of the refusal of their EU Settlement Scheme application, the applicant would not in fact leave the UK for an indefinite period, then the applicant will not meet this criterion.”

Further guidance on the nature of that assessment is at page 31 (we have emboldened the sub-headings which appear in purple in the original document):

“The applicant has never applied under Appendix FM or Article 8 ECHR

If the applicant has never made an application under Appendix FM or a claim that their removal from the UK would breach their right to respect for private or family life as protected by Article 8 ECHR, you must consider whether, on the balance of probabilities, an applicant is likely to qualify for Appendix FM leave such that the applicant has failed to show that they would in fact leave the UK for an indefinite period: see Considering the prospects of making a successful Appendix FM, private life or long residence application.

Considering the prospects of making a successful Appendix FM, private life or long residence application

This is not an exercise to assess whether the applicant qualifies for leave to remain under Appendix FM or based on their private life or long residence, as this can only be done by the relevant caseworker following the making of a valid application under that route, but to consider whether there is a realistic prospect that they would do so (or would have done so), such that they cannot satisfy you that they would (or would have) in fact left the UK for an indefinite period.

If the applicant cannot satisfy you of this on the balance of probabilities, then the British citizen would be able to continue to live in the UK. As a result, the applicant will not meet the requirements to be a ‘person with a Zambrano right to reside’.

If the applicant submits any information or evidence about whether or not they meet the relevant requirements, this must be taken into account when you make the decision.

You must not argue that an applicant could have obtained leave under a route before that route existed. Therefore, please note:

• Appendix FM came into force on 9 July 2012. Before that, parent and partner routes were in Part 8 of the Immigration Rules

• Appendix Private Life came into force on 20 June 2022 for applications made on or after that date, replacing paragraphs 276ADE to 276DH in Part 7 of the Immigration Rules

You must base your assessment on the applicant’s individual circumstances and consider any relevant information or evidence provided. Some guidance is set out below on some of the scenarios you may see:

• the applicant claims to be the parent (including adoptive parent) or legal guardian of a British citizen child

• the applicant claims to be the primary carer of their British citizen spouse or civil partner • the applicant claims to be the primary carer of a British citizen direct relative who is not their spouse, civil partner, or minor child

• the applicant claims long residence in the UK”