[2024] UKUT 00235 (IAC)

Mr Papasotiriou understandably contends that Eyre J’s judgment is supportive of his original submissions.

For the respondent, Mr Deller makes several submissions. We agree with one of those submissions, which is that the Upper Tribunal is not bound by a decision of the High Court.

Mr Deller cites what was said by Eyre J at [71] of R (Roehrig) v SSHD [2023] EWHC 31 (Admin); [2023] 1 WLR 2032 in that connection. Eyre J was there considering whether to depart from a decision made by McCloskey J in this chamber of the Upper Tribunal. He noted that the Upper Tribunal and the High Court were exercising a coordinate jurisdiction and that he was not bound to follow McCloskey J’s decision but that he should do so as a matter of judicial comity unless he was convinced that it was wrong.

We note also what was said by the Upper Tribunal (Tax and Chancery Chamber) in Gilchrist v HMRC [2014] UKUT 169 (TCC); [2015] 1 Ch 183. There, the question was whether the Upper Tribunal was bound by a decision of the High Court. The Upper Tribunal (David Richards J and Julian Ghosh QC concluded that it was not, and it declined to follow the decision of the High Court in Pierce v Wood [2009] EWHC 3225 because it was satisfied that it was wrong.

We disagree with Mr Deller’s remaining submissions, for the following reasons.

We do not accept that Eyre J’s conclusions on the realistic prospect issue were obiter. He explained at some length why it was necessary to decide that issue in order to resolve the submissions made by the claimants. Eyre J clearly did not consider his conclusions on that issue to be obiter, and we note that his order reflects the conclusion that version 6 of the guidance proceeded on a misunderstanding of the law.

Nor do we accept that Eyre J’s decision is wrong for any of the reasons given by Mr Deller. There is no artificiality in Eyre J’s approach, and he explained clearly why the realistic prospect test was not part of the assessment of whether the relevant British citizen would be compelled to leave the UK. That conclusion followed a detailed review of the domestic and European authorities and an equally detailed assessment of the way in which the domestic law and policy had progressed.

The Secretary of State submits that Eyre J failed to engage with the crucial issue, of whether the British citizen can really be subjected to the required compulsion to leave the EU when their carer has an alternative route to lawful residence. We disagree; it is plain that Eyre J understood the nature of the test, since he set out what was said about the ‘nature or intensity of that compulsion’ by Lady Arden in Patel & Shah v SSHD. At [88], he made it clear that the Supreme Court was in that case addressing “compulsion of the British citizen not compulsion of the carer”. He went on to conclude that Velaj v SSHD did not “bear the weight which the Secretary of State sought to place on it”. We respectfully agree.

As we concluded after the hearing, without the benefit of Eyre J’s analysis, nothing in Velaj v SSHD or any of the earlier authorities supports the ‘realistic prospect’ approach in the guidance. Properly understood, nothing in the authorities supports the view that a Zambrano right which has otherwise already come into existence (see Sanneh v Secretary of State for Work and Pensions [2015] EWCA Civ 49; [2016] QB 453) can be denied by reference to the mere possibility (or likelihood) of the carer securing leave to remain. The circumstances in Velaj v SSHD were wholly distinguishable, because there could be no suggestion that the British citizen would be compelled to leave the UK. Here, the most that can be said by the Secretary of State is that there is some possibility that leave might, on application, be granted to the appellant, although the basis upon which he reached that conclusion was based on a misunderstanding of Appendix FM.

We cannot discern in the Secretary of State’s submissions any persuasive reasons not to follow Eyre J’s judgment on the realistic prospect issue. We had reached the same conclusion, albeit for slightly different reasons, and his judgment serves to reinforce our view that the realistic prospect test is no part of the factual analysis required by Appendix EU.

We note one further matter, which is clear from the material which was before Eyre J but was not clear from the material before us in January. At [27] of his judgment, Eyre J noted that the Secretary of State had been presented with three options regarding the framing of the Zambrano provisions in the Settlement Scheme in light of the Court of Appeal’s decision in Akinsanya. Those three options were as follows:

Eyre J noted at [28] that option three was the recommended course. He went on, at [45], to note that it was indeed option three which had been implemented in the amended version of Appendix EU, “albeit with emphasis placed on the need for a fact-based enquiry in the determination of whether the relevant British citizen would in fact have to leave the United Kingdom, the European Economic Area, or Switzerland”.

We consider that evidence to reinforce the first of the conclusions we reached following the hearing (as set out at [53] to [55] above). The Immigration Rules were intentionally framed so as to include those with a realistic prospect of obtaining leave under another route, and it was only in the subsequent guidance, which was issued as a result of the Secretary of State’s gloss on Velaj v SSHD, that the realistic prospect test was said to be a part of the analysis. The construction of the Rules which the Secretary of State now advances, therefore, is contrary to his intention at the time the Rules were framed.

We conclude, in summary, that it is not incumbent on a decision maker who is considering the application of a person who is said to have a Zambrano right to reside to assess whether that person stands a realistic prospect of securing leave to remain under another provision of the Immigration Rules, including Appendix FM. The Secretary of State’s guidance entitled EU Settlement Scheme: person with a Zambrano right to reside has been wrong in suggesting otherwise from 14 December 2022 to date. That approach was not intended when the relevant provisions of Appendix EU of the Immigration Rules were framed, and is not supported by the natural and ordinary meaning of the Rules, or by the domestic and European authorities which pre and post date the promulgation of those Rules. The application of the realistic prospect approach in the guidance is likely in any event to give rise to real difficulty in practice, whether initially or on appeal.

If we are wrong in these conclusions, we make one final observation, which stems from the closure of the Zambrano route to new applicants as of last year. If a judge of the First-tier Tribunal is asked to dismiss the appeal of a Zambrano carer because there is a realistic prospect of them securing leave under Appendix FM, it strikes us that there is every reason not to dismiss the appeal on the basis of that possibility. To do so would be to risk a situation in which the appellant makes a paid application for leave under Appendix FM which is ultimately unsuccessful. That person could not resort to another application as a Zambrano carer because the route has closed.

The better course, in our judgment, would be to ensure that the pending appeal against the adverse decision under Appendix EU would be decided on the basis of the actual facts, as and when they are known. If what we have said in the preceding paragraphs does not represent the law, therefore, we consider that a judge who is faced with a submission such as that which was made in this case might wish to consider staying the appeal under rule 4(3)(j) in order to enable the appellant to make and have decided an application under Appendix FM, thereby preserving their access to leave as a Zambrano carer. To do otherwise would, in our judgment, risk the denial of an entitlement under the Immigration Rules by reference to a contingency.

Although we have decided this appeal with the benefit of much more argument, and with the additional benefit of Eyre J’s judgment, we have in substance reached the same conclusion as Judge Ripley. We therefore dismiss the respondent’s appeal against her decision.