[2024] UKUT 00235 (IAC)

The appellant appealed to the First-tier Tribunal. He was represented then, as now, by Mr Papasotiriou.

Mr Papasotiriou filed a long Appeal Skeleton Argument in which he contended that the respondent’s decision was not in accordance with the Residence Scheme Immigration Rules. The respondent was said to have misunderstood Velaj v SSHD; the appellant did not have extant leave to remain and the FtT was not required to undertake a “proleptic assessment of what other form(s) of leave the person could likely obtain, or would have a realistic prospect of obtaining.” The reality of the case, he submitted, was that the appellant’s partner was in no position to care for their daughter on her own and the refusal of the application would mean that their daughter was compelled to leave the UK with him. Any other approach was contrary to established domestic and Court of Justice (“CJEU”) authority.

The respondent filed a rather shorter Review on 30 May 2023. He accepted that the appellant had been his daughter’s primary carer since 2019. But he maintained the overarching position in the refusal letter, asserting that the appellant “would have likely qualified for leave under Appendix FM as the parent of a British citizen if he had applied prior to the specified date’”. The respondent was therefore “satisfied that the primary carer and British citizen would not have been required to leave the UK.” The appellant was not a person with any right to reside under the principle in Zambrano.

The appeal came before the judge, sitting at Hatton Cross, on 18 August 2023. The appellant was represented by Mr Papasotiriou. The respondent was unrepresented. Given that there were no issues of fact in dispute, the judge heard a submission from Mr Papasotiriou before reserving her decision.

In her reserved decision, the judge made reference to the relevant provisions of the Immigration Rules and to the authorities cited by Mr Papasotiriou, including Akinsanya v SSHD [2022] EWCA Civ 37; [2022] QB 482, Velaj v SSHD and Iida v Stadt Ulm (Case C-40/11); [2013] 1 CMLR 47. Having summarised those arguments, the judge stated at [24] that she accepted what had been said by Mr Papasotiriou. The dispositive reasoning in the decision is found in its three final paragraphs:

“[24] The respondent did not attend the appeal hearing and I accept the arguments put forward by the appellant. I accept that a Zambrano right should be considered as a protection for a British child of last resort, as referred in paragraph 57 of Velaj which summarises Lady Justice Andrews’ understanding of the conclusion in Akinsanya. That paragraph states that a Zambrano right does not arise where a third country national otherwise enjoys a right under domestic law. This appellant does not enjoy a right. It is suggested by the respondent that he could apply for one. I am not satisfied that that is a pedantic distinction. There is a lack of European authority to support the respondent’s guidance and the proposition the respondent relies on. Such an approach realistically leaves the appellant, who currently remains unlawfully in the UK, vulnerable to removal.

[25] I also accept the appellant’s argument that the drafting of the definition in Appendix EU does not, though [sic] any straightforward or purposeful reading, support the meaning that the respondent is seeking to attribute to it in her guidance. I find that that understanding is supported by her decision to include specific exclusions for those with limited and indefinite leave but no such exclusion for an individual who could make an Article 8 application.

[26] I find that the decision appealed against was not in accordance with the provisions of Appendix EU. I am satisfied that the appellant meets the definition of a person with a Zambrano right to reside and satisfies the eligibility requirements for limited leave pursuant to paragraph EU 14.”