[2024] UKUT 00235 (IAC)

There is no dispute about the proper approach to the construction of the Immigration Rules. It is necessary to consider the language of the rule, construed against the relevant background. That involves consideration of the rules as a whole and the function they serve in the administration of immigration policy: Odelola v SSHD [2009] UKHL 25; [2009] 1 WLR 1230. The Rules are not to be construed with all the strictness applicable to the construction of a statute but “sensibly according to the natural and ordinary meaning of the words used, recognising that they are statements of the Secretary of State’s administrative policy”: Mahad & Ors v SSHD [2009] UKSC 16; [2010] 1 WLR 48.

Adopting that approach, we were unable when we first heard this case to understand how the “realistic prospect test” in the Secretary of State’s published policy was said to be found in the Immigration Rules. It was said by Mr Deller to be part of the enquiry required by paragraph (a)(iii) of the definition of a person with a Zambrano right to reside. But that paragraph requires a decision maker to consider the consequences for the relevant British citizen if the applicant ‘in fact left the UK for an indefinite period’. It does not require the decision-maker to consider what would or might happen in the event that the applicant made an application under other provisions of the Immigration Rules. The focus is on the present reality of the case, and not on alternative hypotheses of what might happen in the event that an alternative route was explored.

We considered that it would have been a simple matter for the Secretary of State to draft the Rules so as to contain the realistic prospect test. When we put that to Mr Deller, he was inclined to agree, although he maintained that there was no need to do so because the test was implicit in the words used in paragraph (a)(iii). We are unable to accept that submission. As drafted, it is simply impossible to read into that paragraph an intention that a decision maker should take such contingencies into account.