The Secretary of State for the Home Department v Sylvia Sonkor

1. By a decision promulgated on 22 December 2021, First-tier Tribunal Judge Mills (“the judge”) allowed an appeal brought by Sylvia Sonkor, a citizen of Ghana born in 1976, against a decision of the Secretary of State dated 2 February 2021 to refuse her application for leave to remain under the EU Settlement Scheme (“the EUSS”). The judge heard the appeal under the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 (“the 2020 Regulations”).

2. By a decision promulgated on 7 December 2022, Upper Tribunal Judge Smith (sitting alone) found that the judge’s decision involved the making of an error of law, set it aside and gave directions for the decision to be remade in the Upper Tribunal: see Judge Smith’s error of law decision, and the accompanying reasoned adjournment directions, in the Annex .

3. The matter came before us on 21 March 2023 for the decision to be remade, acting under section 12(2) (b)(ii) of the Tribunals, Courts and Enforcement Act 2007 . The hearing proceeded on the basis of submissions alone. Each party relied on their skeleton argument.

4. Although these proceedings began as an appeal brought by the Secretary of State, for present purposes we refer to the appellant before the First-tier Tribunal as “the appellant”. Factual and procedural background

5. The full factual background is set out in the Annex to this decision. The appellant is a single mother and primary carer of her two British children born in 2004 and 2006. The elder child is now 18, although little turns on that development, since he was a minor when these proceedings started, and, in any event, the appellant’s daughter is still a minor. In 2015 and 2018, the Secretary of State granted the appellant limited leave to remain under Appendix FM of the Immigration Rules on human rights grounds, on account of her role as the primary carer for her two British children. On 19 August 2020, before the expiry of her leave under Appendix FM, the appellant applied for leave to remain under the EUSS, on the basis that she was a person with a ‘Zambrano’ right to reside. For a discussion of the ‘Zambrano’ right to reside, see R (Akinsanya) v Secretary of State for the Home Department [2022] EWCA Civ 37 , paras 8 to 15.

6. The Secretary of State refused the application on the basis that there was a “realistic prospect” of the appellant being able to obtain further leave to remain under Appendix FM. That being so, the appellant had not demonstrated that she would have “no other means to remain lawfully in the UK” as the primary carer of her children. She therefore failed to meet the criteria in regulation 16(5) of the Immigration (European Economic Area) Regulations 2016 (“the 2016 Regulations”), to which the relevant provisions of Appendix EU of the Immigration Rules cross-referred at the time (there have been amendments since, but none is relevant). Issue to be resolved: whether the decision is in accordance with Appendix EU

7. Zambrano carers are not within the scope of the EU Withdrawal Agreement. The appellant does not, therefore, enjoy the ability to advance a ground of appeal under regulation 8(2) of the 2020 Regulations, concerning the compatibility of the decision with the Withdrawal Agreement. The relevant ground of appeal is that found in regulation 8(3)(b) of the 2020 Regulations: that the decision in question is not in accordance with “residence scheme immigration rules”, namely Appendix EU of the Immigration Rules. The case therefore turns on whether the decision of the Secretary of State was in accordance with Appendix EU.

8. Paragraph EU11 of Appendix EU, in the form it stood at the date of the application, was as follows: “(a) The applicant: (i) is a relevant EEA citizen; or (ii) is (or, as the case may be, for the relevant period was) a family member of a relevant EEA citizen; or (iii) is (or, as the case may be, for the relevant period was) a family member who has retained the right of residence by virtue of a relationship with a relevant EEA citizen; or (iv) is a person with a derivative right to reside; or (v) is a person with a Zambrano right to reside ; or (vi) is a person who had a derivative or Zambrano right to reside; and (b) The applicant has completed a continuous qualifying period of five years in any (or any combination) of those categories; and (c) Since then no supervening event has occurred…”

9. “Person with a Zambrano right to reside” is a defined term in Annex 1 to Appendix EU. It means: “a person who has satisfied the Secretary of State, including (where applicable) by the required evidence of family relationship, that, by the specified date, they are (and for the relevant period have been), or (as the case may be) for the relevant period in which they rely on having been a person with a Zambrano right to reside (before they then became a person who had a derivative or Zambrano right to reside) they were: (a) resident for a continuous qualifying period in the UK with a derivative right to reside 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) 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), regardless (where the person was previously granted limited leave to enter or remain under this Appendix as a person with a Zambrano right to reside and was under the age of 18 years at the date of application for that leave) of whether, in respect of the criterion in regulation 16(6)(a) of the EEA Regulations, they are, or (as the case may be) were, under the age of 18 years; and (b) without leave to enter or remain in the UK granted under another part of these Rules .” (Emphasis added).

10. At the material times, regulation 16(5) of the 2016 Regulations provided: “(5) The criteria in this paragraph are that – (a) the person is the primary carer of a British Citizen ("BC") (b) BC is residing in the United Kingdom; and (c) BC would be unable to reside in the United Kingdom or in another EEA State if the person left the United Kingdom for an indefinite period.” The appellant is not a “person with a Zambrano right to reside”

11. While the Secretary of State’s operative reasons for refusing the appellant’s application under the EUSS focussed on what she considered to be the appellant’s prospective ability to secure leave under Appendix FM, it was common ground that the appellant would have to meet additional criteria contained in Appendix EU in any event. In our judgment, the primary question is whether the appellant meets paragraph (b) of the definition of a “person with a Zambrano right to reside” in Annex 1 to Appendix EU (applicant must be without leave to enter or remain granted under another part of the Immigration Rules).

12. Mr Appiah sought to rely on the Court of Appeal’s judgment in Akinsanya as authority for the proposition that the Secretary of State had misunderstood the import of the 2016 Regulations and their relationship with the EUSS on matters relating to Zambrano when framing the rules, and when taking the decision under challenge in these proceedings. He submitted that Mr Deller had merely invited us to adopt the same erroneous understanding of the EUSS as the Secretary of State had in Akinsanya . See para. 8 of his skeleton argument: “It is respectfully submitted that it is difficult to see how the approach to the present appeal cannot follow the conclusions of Court of Appeal which found that the Respondent erred in law in [her] approach and that (contrary to Home Office policy) a primary carer of a UK citizen child may have a Zambrano right to reside even where they are entitled to limited leave to remain on another basis.”

13. The difficulty with that submission is that Akinsanya concerned the disparity between the Secretary of State’s understanding of the 2016 Regulations and the effect of Appendix EU, insofar as each concerned Zambrano carers holding some form of existing, non-EUSS leave to remain. Whereas regulation 16(7) of the 2016 Regulations prevented a person with indefinite leave to remain from enjoying a right to reside as a Zambrano carer (thereby entitling putative Zambrano carers with limited leave to remain to be granted a right to reside on Zambrano grounds under those Regulations), paragraph (b) of the Annex 1 definition of a Zambrano carer carved out holders of limited, as well as indefinite, leave to remain from the scope of the EUSS Zambrano provisions. What Akinsanya did not do was find the paragraph (b) requirement in the Annex 1 definition of a “person with a Zambrano right to reside…” to be unlawful. The Court did not quash the rule and declined to be drawn into a discussion as to whether the Secretary of State had misdirected herself in framing the EUSS. That depended on what the Secretary of State was intending to achieve, the Court held. There were any number of reasons why the Secretary of State may have wanted to adopt a different approach: see para. 57.

14. We have emboldened the words in the definition of a “Zambrano right to reside” at para. 9 since they lie at the heart of our operative analysis. The appellant held leave granted under Appendix FM at the time of her EUSS application. She continues to hold leave in that capacity, pursuant to section 3C of the 1971 Act. In his written and oral submissions before us, Mr Deller relied on the barrier to the appellant succeeding established by paragraph (b) in the Annex 1 definition. We agree that paragraph (b) is dispositive of these proceedings against the appellant. Since the appellant held leave under Appendix FM at the time of her application (and, extended by section 3C, at the date of the appeal before us), she is unable to be a person who meets the definition of “Zambrano right to reside”. She cannot satisfy the requirement that she does not hold leave to enter or remain granted under another part of the rules. By holding another form of leave, the appellant disqualified herself from being able to succeed as a Zambrano carer under Appendix EU. That is dispositive of all issues in this appeal.

15. Nothing in Akinsanya calls for a different approach; the Court of Appeal held that the ‘Zambrano circumstances’ were not engaged in relation to a person who holds existing leave to remain: see para. 48, and the preceding discussion.

16. Mr Appiah sought to rely on Velaj v Secretary of State for the Home Department [2022] EWCA Civ 767 . Mr Velaj faced deportation to Kosovo for serious criminal offences. The Upper Tribunal found, as a matter of fact, that Mr Velaj’s wife and their British daughters would not relocate to Kosovo upon Mr Velaj’s deportation, thereby preventing him from satisfying the criterion contained in regulation 16(5)(c) of the 2016 Regulations. The issue in Velaj before the Court of Appeal was whether a person deciding whether the requirements of regulation 16(5)(c) were fulfilled had to assume that the primary carer of a British citizen dependent would leave the UK for an indefinite period, or whether the decision-maker must consider what the impact on the British citizen would be if in fact the primary carer (or both primary carers) would leave the UK for an indefinite period: see para. 13.

17. Mr Appiah relied expressly on paras 68 and 69 of Velaj . At para. 69, Andrews LJ held: “I can also envisage a Zambrano carer whose limited leave to remain is due to expire making an application under Regulation 16(5)(c) and succeeding on the basis that they would have to leave the UK as soon as their limited leave expired and the child would have to go with them. In such a case if the decision-maker asks "what will happen to the child in the event that the primary carer leaves the UK for an indefinite period?" they will not be positing a completely unrealistic scenario...”

18. The difficulty with Mr Appiah’s submission is that Velaj concerned an application under the 2016 Regulations, rather than the EUSS. That Andrews LJ envisaged a Zambrano carer with imminently expiring limited leave to remain being able to succeed under regulation 16(5)(c) of the 2016 Regulations does not undermine our conclusion that this appellant is unable to meet the definition of a “person with a Zambrano right to reside” in Appendix EU. Appendix EU specifically excludes applicants, such as this appellant, who hold limited or indefinite leave to remain at the time of their application to the Secretary of State. The fact that the 2016 Regulations did not is nothing to the point. As Mr Deller points out at para. 12 of his skeleton argument, these proceedings are not a judicial review challenge to the lawfulness of para. (b) of the Annex 1 definition. Appeal dismissed

19. Drawing this analysis together, we conclude in these terms. At the time of her EUSS application, the appellant held limited leave to remain under Appendix FM. That precluded her from meeting para. (b) of the definition of “a person with a Zambrano right to reside” in Appendix EU. It is not necessary for us to consider the other reasons relied upon by the Secretary of State for refusing the application. The appeal must be dismissed in any event.

20. Nothing in this decision should be read as undermining the Secretary of State’s repeated insistence throughout her decision dated 2 February 2021 that the appellant has a realistic prospect of a future application succeeding under Appendix FM. Postscript

21. In his skeleton argument, Mr Deller drew our attention to two minor clarifications arising from the summary of Ms Akinsanya’s circumstances in para. 19 of the error of law decision. First, Ms Akinsanya’s ineligibility for certain benefits as a Zambrano carer under the 2016 Regulations was not as a result of the imposition of a “no recourse to public funds” condition. Rather, it was because all Zambrano carers under the 2016 Regulations were prohibited from having recourse to most public funds by virtue of primary legislation. Secondly, Ms Akinsanya did not hold leave to remain under Appendix FM at the date the EUSS came into force, but at the date of her EUSS application, as we note above at para. 14. We accept those clarifications. Nothing turns on them for the purposes of our analysis. Notice of Decision The decision of Judge Mills contained an error of law and is set aside. We remake the decision, dismissing the appeal. We do not make a fee award. Stephen H Smith Judge of the Upper Tribunal Immigration and Asylum Chamber 24 March 2023