[2024] UKUT 00235 (IAC)

The Secretary of State sought permission to appeal to the Upper Tribunal. The concise grounds were settled by Mr Deller. It was submitted that the judge had misdirected herself in law. She had misunderstood the relevance of the ability to make a successful application under Appendix FM; this was not a formal, procedural requirement but part of the detailed factual matrix to which the test in the Rules was to be applied. The Secretary of State’s guidance was irrelevant; the critical point was that the appellant was less likely to face removal if he had strong ties to the UK.

Judge Chowdhury considered those grounds to be arguable and granted permission to appeal to the Upper Tribunal.

Mr Papasotiriou filed a response to the grounds under rule 24. We also have a skeleton argument from Mr Deller, to which he confirmed that the respondent’s policy teams had made a significant contribution.

Mr Deller submitted that the analysis required by the relevant Immigration Rule was a holistic and fact-sensitive one. In any such case, the Tribunal was required to consider whether, if the Appendix EU application was refused, the primary carer would be required to leave the UK indefinitely and, if so, whether the British citizen would be unable, in practice, to remain in the UK, the EEA or Switzerland. In that respect, the test in the Immigration Rules mirrored the approach in the domestic and European Zambrano authorities.

Mr Deller acknowledged that there was no express reference in the Immigration Rules to the possibility of an applicant under Appendix EU applying for and securing leave to remain on another basis. He accepted that “quite a lot needs to be inferred” but he submitted that the scheme, and the necessary part played by the respondent’s “realistic prospect” policy (Footnote: ¹), was clear when the Rules were read as a whole and in the context of what had gone before.

We asked Mr Deller which version of the Immigration Rules applied to the appellant’s case. He submitted initially that the relevant version was that which was in force at the date of the appellant’s application (25 June 2021). Having reflected on the absence of relevant transitional provisions in HC719, however, Mr Deller could see no reason why the amended definition of “a person with a Zambrano right to reside” which was substituted on 9 November 2022 should not have applied at the date of the respondent’s decision, or that of the FtT.

Mr Deller submitted that the obvious and rational meaning of the question posed by paragraph (a)(iii) of that definition was as contended in the skeleton argument; it was necessary to consider whether the British citizen would be required to leave, which in turn necessitated consideration of whether their primary carer would be required to leave. That necessitated consideration of whether the carer could make an application under the other Immigration Rules, and Appendix FM in particular. It was necessary to recall that a Zambrano right was merely a residual or derivative right, brought about to protect the rights of a Union Citizen under the TFEU. It was impermissible for a person to engineer a situation in which they benefitted from that right by deciding not to make an application under Appendix FM. As was clear from the Secretary of State’s skeleton argument, it was not his position that the existence of such an alternative route was determinative; it was a part of a holistic and fact-sensitive enquiry.

Mr Papasotiriou submitted, citing Mahad v ECO [2009] UKSC 16; [2010] 1 WLR 48, that the Tribunal should consider the natural and ordinary meaning of the Immigration Rules. In his submission, the relevant provisions did not correspond with the submissions of the Secretary of State, and it was not possible to read the “realistic prospect” test into the Rules. It was accepted by the appellant in light of [47]-[48] of Velaj v SSHD that the test was not a purely hypothetical one but the European authorities (Zambrano v Office national de l’emploi (Case C-34/09) [2011] 2 CMLR 46, Dereci v Bundesministerium für Inneres (Case C-256/11); [2012] 1 CMLR 45 and Iida v Stadt Ulm) militated against the respondent’s approach. In the case of an appellant in the paradigm situation, there was more than a “purely hypothetical prospect” (Iida v Stadt Ulm refers, at [77]) of the British citizen’s rights under the TFEU being obstructed by the removal of their carer. The circumstances in Velaj v SSHD were wholly distinguishable, in that the other carer was able to look after the British citizen and had no intention of leaving the UK.

Mr Papasotiriou accepted that the authorities (Dereci and Sanneh v SSWP [2015] EWCA Civ 49; [2015] 3 WLR 1867 in particular) showed that extant leave to remain was usually sufficient to defeat a claim to a Zambrano right but the Secretary of State invited the Tribunal to go a step further. Taking that step would lead to absurd results, he submitted, and it was to be recalled that a ‘proleptic’ analysis had been deprecated in other contexts. It was preferable, he submitted, to focus on the known circumstances, rather than engaging in speculation as to what might happen. In the instant case, there was no clear route available to the appellant under the Immigration Rules. He was not eligible to apply as a parent as a result of E-LTRPT 2.3 of Appendix FM and he would therefore be compelled to rely on his relationship with his wife, either in an application under the Ten Year Route or on Article 8 ECHR grounds under Gen 3.2 of Appendix FM. He might also have to make an application for a fee waiver. Any assessment under section EX1 would not be straightforward. The Secretary of State’s “realistic prospect” approach was unnecessary and overly speculative. The proper course was to treat the possibility of a carer making an Appendix FM application as an irrelevancy and to consider their entitlement under Appendix EU on the basis of the known facts.

Mr Deller replied briefly, submitting that the appellant’s vulnerability to removal could not be sufficient. It remained necessary to consider whether he had a potentially effective claim under Appendix FM.

We permitted Mr Papasotiriou to add a further point at the end of Mr Deller’s submissions. He reminded us that the relevant route had been closed altogether by HC 1496. That had been effected by providing that applications were to have been made by the ‘required date’, which was 9 August 2023. In the event that the appellant could not successfully assert a claim under Appendix EU in this appeal, therefore, he would be unable to assert it in the future.

We reserved our decision at the end of the submissions.

On 11 March 2024, by which stage this decision was substantially complete, we noted that Eyre J had handed down judgment in R (Akinsanya & Aning-Adjei) v SSHD. The first issue which the court considered in that case, as summarised by Eyre J at [16], was whether the Secretary of State

“was correct in formulating App EU and the Guidance on the basis that under EU law a Zambrano right to reside did not extend to those who had a real prospect of obtaining leave to remain under a different route (even if those persons had not actually obtained such leave)?”

Given Eyre J’s detailed consideration of that question, and the fact that it was the central question before us, we issued directions requiring the parties to make written submissions on the judgment. Mr Papasotiriou’s submissions for the appellant were filed and served on 28 March. Mr Deller’s submissions for the respondent were filed and served (after a short extension of time) on 8 April 2024.

The parties’ positions on the judgment were, in outline only at this stage, as follows.

The Secretary of State’s primary position was that our decision should be stayed to await the outcome of any appeal he might make against Eyre J’s decision. In the alternative, Mr Deller submitted that a decision of the High Court is not binding on the Upper Tribunal; that the relevant section of Eyre J’s judgment was obiter; and that the relevant section of the judgment was wrong and that there were powerful reasons not to follow it.

For the appellant, Mr Papasotiriou submitted that Eyre J’s resolution of the “realistic prospect” question was part of the ratio of his decision or, in the alternative, that it was highly persuasive and should be followed. Mr Papasotiriou submitted that Eyre J rejected the Secretary of State’s critical submission that Velaj v SSHD supported the “realistic prospect” question and that we should reach the same conclusion.

We are grateful to the advocates for their written submissions. We made enquiries of the Administrative Court after receiving those submissions. We learned that Eyre J had refused applications by the claimants and the defendant for permission to appeal to the Court of Appeal. We received a copy of his final order, which was sealed on 24 April 2024.

We do not know whether the claimants or the Secretary of State have made applications for permission to appeal directly to the Court of Appeal. We do not consider it necessary or desirable to stay this appeal in order to await the outcome of any application(s) which might be made. To do so would only serve to delay these proceedings still further and, in any event, we consider the correct outcome of this appeal to be clear.

We record that neither party invited us to reconvene the hearing to hear oral submissions. We have nevertheless considered whether to do so, and have decided that further oral submissions are not necessary in light of the comprehensive written submissions made.