[2024] UKUT 00235 (IAC)

The effect of the guidance which we have reproduced at [41]-[46] above is to place a burden on a Zambrano applicant to demonstrate on the balance of probabilities that they would be unlikely to secure leave to remain under Appendix FM. Given that there is no such requirement in the Immigration Rules, or in the already overlong application form, we consider the imposition of such a burden to be conspicuously unfair. People such as the appellant have – since the amendment of the guidance – been refused leave under Appendix EU on a basis which they could not have discerned from the Immigration Rules or the form which they completed. Many such people would have been unrepresented.

It is also to be recalled that a person who is refused leave under Appendix EU because they are thought to have a realistic prospect of securing leave under Appendix FM cannot, as of August last year, simply make a further application; as noted above, the route is now closed to new applicants.

We struggle to understand the scope of the “realistic prospect” analysis which the guidance requires caseworkers to undertake. Both in the guidance and the submissions made before us, it seems that the expectation is that the caseworker should enquire into the merits of any application which might at some point be made by the applicant. Mr Deller accepted, therefore, that something more would be required than simply a decision that a person has a partner or a child in the UK, and might therefore be eligible for leave to remain on that basis.

We pressed Mr Deller at the hearing to assist us with the depth of the enquiry required of the caseworker, using the facts of this case as an appropriate example. Mr Deller thought that the caseworker should consider whether, on the facts, the appellant could make a claim under Appendix FM of the Immigration Rules. He accepted, as we understood him, that the caseworker should also consider whether that claim might be brought as a parent or a partner. We asked whether the enquiry should proceed beyond that stage. Mr Deller thought that it should, and submitted at one point that the caseworker should consider whether there was a realistic prospect of the appellant demonstrating on the balance of probabilities that he was entitled to leave to remain under Appendix FM. That mirrors the terms of the guidance, which suggests that it is for the applicant to satisfy the caseworker on the balance of probabilities that they would be unlikely to meet the other requirements of the Immigration Rules.

Despite the terms of the guidance (which states that “[t]his is not an exercise to assess whether the applicant qualifies for leave to remain under Appendix FM”), it is difficult to see how a caseworker can assess whether a person is likely to qualify under Appendix FM without undertaking a proper assessment under those Rules. There might be any number of reasons why a person with a British partner and/or a British child would be unlikely to secure leave to remain under Appendix FM, but those reasons are only likely to be identified by a caseworker properly applying their mind to the detailed provisions of Appendix FM. If a person is to be denied leave to remain as a Zambrano carer because they are thought to have a realistic prospect of securing leave under Appendix FM, it is imperative that the denial of the former entitlement is based on a proper consideration of the latter. The pre-screening approach which the guidance requires is no such thing, and is likely to lead to errors. Given the closure of the route from August 2023, the consequences of such errors may be significant; a person who would have been entitled to leave to remain as a Zambrano carer might lose that entitlement because a caseworker wrongly assessed there to be a realistic prospect of leave under Appendix FM.

We need not turn to hypothetical cases for an example of such an error. The Secretary of State concluded in this case that the appellant stood a realistic chance of “being granted Appendix FM leave as a parent of a British citizen”. We explored that suggestion with Mr Deller at the hearing, and it appears to be straightforwardly wrong, for the reasons given by Mr Papasotiriou.

The eligibility requirements for limited leave to remain as a parent include paragraph E-LTRPT 2.3. The appellant cannot satisfy E-LTRPT 2.3(a) because he does not have sole parental responsibility for his daughter; he and his wife live with their daughter as a family unit. The alternative, paragraph E-LTRPT 2.3(b), requires the applicant to satisfy three requirements. He is able, we think, to satisfy the first (as his partner is settled in the UK), but he cannot satisfy the second or third because his partner is his daughter’s mother and because he is “eligible to apply for leave to remain as a partner’” (as to which, see SSHD v Khattak [2021] EWCA Civ 1873; [2022] Imm AR 576). Mr Deller accepted this analysis when it was put to him.

The caseworker in this case was wrong, therefore, to conclude that the applicant had any chance of securing leave to remain as a parent under Appendix FM. Whether or not he could meet the other requirements, he falls foul of the black and white requirements of the paragraph we have considered above. What of the applicant’s eligibility for leave to remain as a partner, therefore? There is no suggestion that he would fall foul of the Suitability requirements. His partner is settled. They appear to be in a durable relationship and their relationship appears to be genuine and subsisting. The appellant is clearly in the UK in breach of the immigration laws, however, and he therefore falls foul of the Immigration Status Requirement at E-LTRP 2.2 of Appendix FM. He could only secure leave as a partner, therefore, if he is able to meet the requirements of the ‘Ten Year Route’ in D-LTRP 1.2 of that appendix. He must either establish, therefore, that there are insurmountable obstacles to the continuation of his family life in Zimbabwe (paragraph EX1 refers) or that a refusal would give rise to unjustifiably harsh consequences which would breach Article 8 ECHR (paragraph GEN 3.2(2) refers).

Mr Deller was reticent about offering a submission on the appellant’s likely ability to persuade the Secretary of State of either of those matters and it is rather difficult to see how one could take a provisional view on either prospect. If the Secretary of State is correct in his approach, and the realistic prospect test is indeed part of the de facto compulsion test, judges considering appeals against decisions such as this would be faced with the most peculiar situation of Presenting Officers arguing that appellants would be likely to meet the requirements of the Immigration Rules, whilst those representing appellants would be required, in order to defend against the submission, to argue that their clients would be unable to meet the requirements of the Immigration Rules. The only proper way to evaluate that submission would be to consider the requirements of the Immigration Rules and the evidence adduced (or not adduced) by the parties, and to reach a reasoned decision on all of the requirements. A mere ‘pre-screening’ of the kind suggested in the guidance would be likely to lead to errors such as that which occurred in the Secretary of State’s decision in this case, with the serious consequences which we have already explained. Whether at initial decision-making stage or on appeal, therefore, we concluded that the approach suggested in the guidance was not only unfair (because it requires an applicant to prove that which was not known to be in issue) but also unworkable.

For these three reasons, we concluded after the hearing that the ‘realistic prospect’ test in the Secretary of State’s guidance did not represent the law. Then came Eyre J’s decision in Akinsanya & Aning-Adjei v SSHD.