The Secretary of State for the Home Department v Sylvia Sonkor

Under Appendix EU, a person applying as a Zambrano carer must satisfy the definition in Annex 1 at the relevant date. That definition excludes a person holding limited or indefinite leave to enter or remain granted under another part of the Immigration Rules. The exclusion applies even where the applicant may satisfy the underlying Zambrano criteria in regulation 16(5) of the Immigration (European Economic Area) Regulations 2016. R (Akinsanya) v Secretary of State for the Home Department did not invalidate or require the disregard of paragraph (b) of the Annex 1 definition. The EUSS and the 2016 Regulations are distinct regimes, so a person who might qualify under regulation 16 does not thereby qualify under Appendix EU.

The respondent, a Ghanaian national and primary carer of two British children, had been granted limited leave under Appendix FM on human rights grounds. Before that leave expired, she applied under the EU Settlement Scheme as a person with a Zambrano right to reside. The Secretary of State refused the application.

The First-tier Tribunal allowed the appeal, relying on regulation 16(5) of the Immigration (European Economic Area) Regulations 2016 and the then judgment in R (Akinsanya) v Secretary of State for the Home Department. The Upper Tribunal set that decision aside for error of law and remade the decision. The central issue was whether the respondent’s existing Appendix FM leave prevented her from satisfying paragraph (b) of the Annex 1 definition in Appendix EU.

1. The First-tier Tribunal’s decision contained an error of law and was set aside. The judge had failed to address paragraph (b) of the Annex 1 definition of a “person with a Zambrano right to reside”, despite the respondent holding limited leave under Appendix FM when she applied under the EUSS.
2. Paragraph (b) required the applicant to be without leave to enter or remain granted under another part of the Immigration Rules. The respondent’s Appendix FM leave therefore prevented her from meeting the definition. That requirement was dispositive of the appeal, so it was unnecessary to determine the Secretary of State’s alternative reasoning concerning a prospective application under Appendix FM.
3. The fact that the respondent could satisfy the primary-carer criteria in regulation 16(5) of the Immigration (European Economic Area) Regulations 2016 did not overcome the separate requirement in Appendix EU. The two regimes had to be kept distinct.
4. R (Akinsanya) v Secretary of State for the Home Department concerned the relationship between regulation 16 and the EUSS provisions. The Court of Appeal did not quash paragraph (b) of the Annex 1 definition and did not decide that the exclusion of persons with limited leave was unlawful. Nothing in that decision required a different result.
5. Velaj v Secretary of State for the Home Department concerned the application of regulation 16(5)(c), not the EUSS definition. Its observations about a person with limited leave potentially succeeding under the 2016 Regulations did not assist an applicant excluded by Appendix EU.

The appeal was dismissed. The decision was remade dismissing the appeal, and no fee award was made.

• Upper Tribunal (Immigration and Asylum Chamber) — the First-tier Tribunal’s decision of 22 December 2021 was set aside for error of law and the appeal was remade and dismissed.
• First-tier Tribunal — allowed the appeal against the Secretary of State’s refusal of the EUSS application.