Secretary of State for the Home Department v Gabriel Tichaona Maisiri

A decision-maker considering whether an applicant is a person with a Zambrano right to reside under Appendix EU must assess the actual consequences if the applicant leaves the United Kingdom indefinitely. The decision-maker need not assess whether the applicant has a realistic prospect of obtaining leave under another route, including Appendix FM.

That additional assessment cannot be read into paragraph (a)(iii) of the definition. It is unsupported by the domestic and European authorities and is liable to be unfair and unworkable. The Secretary of State’s guidance, EU Settlement Scheme: person with a Zambrano right to reside, was wrong to require it from 14 December 2022.

The respondent, a Zimbabwean national and the joint primary carer of his British citizen daughter, applied for limited leave under Appendix EU as a person with a Zambrano right to reside. The Secretary of State refused the application because he considered that the respondent had a realistic prospect of obtaining leave as the parent of a British citizen under Appendix FM.

The First-tier Tribunal allowed the appeal on 5 September 2023. It held that the respondent met the relevant Appendix EU definition and was eligible for limited leave under paragraph EU 14. The Secretary of State appealed to the Upper Tribunal.

The central issue was whether paragraph (a)(iii) of the Appendix EU definition required a decision-maker to consider an applicant’s realistic prospect of obtaining leave under another part of the Immigration Rules.

1. Appeal dismissed. The First-tier Tribunal was right to allow the appeal. Its decision was to stand.

2. Paragraph (a)(iii) of the Appendix EU definition requires consideration of whether the British citizen would in practice be unable to reside in the United Kingdom, the EEA or Switzerland if the applicant in fact left the United Kingdom indefinitely. Construed according to its natural and ordinary meaning, it does not require consideration of a hypothetical future application for leave under another route.

3. The Secretary of State’s realistic-prospect policy could not be derived from the Rule. The court’s analysis of Velaj v SSHD [2022] EWCA Civ 767 showed that it required a fact-specific inquiry into what would happen in reality; it did not support an inquiry into the likely outcome of an unmade Appendix FM application.

4. The tribunal followed the persuasive reasoning in R (Akinsanya & Aning-Adjei) v SSHD [2024] EWHC 469 (Admin). A Zambrano right is excluded where the carer has actually been granted leave to remain, not where there is merely a realistic prospect of obtaining it.

5. The guidance was also unfair and unworkable. It imposed an undisclosed burden on applicants to establish that they were unlikely to qualify under Appendix FM. A proper assessment would require detailed consideration of alternative rules and evidence, rather than the purported pre-screening exercise. The error in this case illustrated the difficulty: the respondent could not qualify as a parent under paragraph E-LTRPT 2.3.

6. Accordingly, the guidance entitled EU Settlement Scheme: person with a Zambrano right to reside had wrongly required the realistic-prospect assessment since 14 December 2022. The Secretary of State’s appeal was dismissed.

• Upper Tribunal (Immigration and Asylum Chamber): The Secretary of State’s appeal was dismissed. The First-tier Tribunal’s decision allowing the appeal remained in force.
• First-tier Tribunal: On 5 September 2023, First-tier Tribunal Judge Ripley allowed the appeal against refusal of limited leave under Appendix EU.