[2024] UKUT 00235 (IAC)

The EU Settlement Scheme opened on 30 March 2019, on which date Appendix EU was inserted into (or added onto) the Immigration Rules. Appendix EU made provision from that date for a person with a Zambrano right to reside to apply for Indefinite Leave to Remain (under paragraph EU 11) or limited leave to remain (under paragraph EU 14). The definition of a person with a Zambrano right to reside was to be found in Annex 1 and was as follows:

“a person:

(a)

with, by the specified date, a right to reside in the UK by virtue of regulation 16(1) of the EEA Regulations, by satisfying the criteria in:

(i)

paragraph (5) of that regulation; or

(ii)

paragraph (6)(c) of that regulation where that person’s primary carer is, or (as the case may be) was, entitled to a derivative right to reside in the UK under paragraph (5); and

(b)

without leave to enter or remain in the UK granted under another part of these Rules.”

That definition was subsequently amended but the cross-reference to regulation 16 of the 2016 Regulations remained until a wholesale replacement of the definition was effected by paragraph APP EU11 of HC719. Certain parts of that instrument preserved the application of the pre-existing Immigration Rules for pending applications but APP EU11 took effect on 9 November 2022.

By application of the principle in Odelola v SSHD [2009] UKHL 25; [2009] 1 WLR 1230, therefore, it was that new definition which applied when the Secretary of State came to make a decision on the appellant’s application on 18 January 2023. The new definition of a person with a Zambrano right to reside was in the following terms (with emphasis supplied):

“a person who has satisfied the Secretary of State by evidence provided that they are (and for the relevant period have been) or (as the case may be) for the relevant period they were:

(a)

resident for a continuous qualifying period in the UK which began before the specified date and throughout which the following criteria are met:

(i)

they are not an exempt person; and

(ii)

they are the primary carer of a British citizen who resides in the UK; and

(iii)

the British citizen would in practice be unable to reside in the UK, the European Economic Area or Switzerland if the person in fact left the UK for an indefinite period; and

(iv)

they do not have leave to enter or remain in the UK, unless this was granted under this Appendix or in effect by virtue of section 3C of the Immigration Act 1971; and

(v)

they are not subject to a decision made under regulation 23(6)(b), 24(1), 25(1), 26(3) or 31(1) of the EEA Regulations, unless that decision has been set aside or otherwise no longer has effect; or

(b)

resident for a continuous qualifying period in the UK which began before the specified date and throughout which the following criteria are met:

(i)

they are not an exempt person; and

(ii)

they are under the age of 18 years (unless they were previously granted limited leave to enter or remain under paragraph EU3 of this Appendix as a person with a Zambrano right to reside and were under 18 at the date of application for that leave); and

(iii)

their primary carer meets the requirements of sub-paragraph (a) above; and

(iv)

the primary carer would in practice be prevented from residing in the UK if the person in fact left the UK for an indefinite period; and

(v)

they do not have leave to enter or remain in the UK, unless this was granted under this Appendix or in effect by virtue of section 3C of the Immigration Act 1971; and

(vi)

they are not subject to a decision made under regulation 23(6)(b), 24(1), 25(1), 26(3) or 31(1) of the EEA Regulations, unless that decision has been set aside or otherwise no longer has effect.”

in addition:

(a)

‘relevant period’ means here the continuous qualifying period in which the person relies on meeting this definition; and

(b)

unless the applicant relies on being a person who had a derivative or Zambrano right to reside or a relevant EEA family permit case, the relevant period must have been continuing at 2300 GMT on 31 December 2020; and

(c)

where the role of primary carer is shared with another person in accordance with sub-paragraph (b)(ii) of the entry for ‘primary carer’ in this table, the reference to ‘the person’ in sub-paragraph (a)(iii) above is to be read as ‘both primary carers’”

Our focus in this decision is on the underlined requirement in that definition: paragraph (a)(iii). Since its introduction on 9 November 2022, that paragraph has remained unchanged.

It is also necessary before leaving the Immigration Rules to note the point made by Mr Papasotiriou at the very end of the hearing. As a result of amendments effected by HC 1496, the Zambrano route closed to new applicants from 9 August 2023, that being the ‘required date’ by which such applications were to be submitted.