Education

No ‘Realistic Prospect’ Policy in EUSS Zambrano Cases

Published on October 7, 2024

By Alex Papasotiriou – Immigration Barrister

04 Oct 2024

1. Introduction

In its judgment in Maisiri (EUSS; Zambrano; ‘Realistic Prospect’ policy) [2024] UKUT 00235 (IAC) promulgated on 21 June 2024 and reported on 16 August 2024, the Upper Tribunal confirmed that it is not incumbent on a decision-maker considering an EUSS application from a person with a Zambrano right to reside to assess whether the applicant has a realistic prospect of securing leave to remain under a different provision of the Immigration Rules. Insofar as the Home Office’s relevant guidance purports otherwise, the Upper Tribunal held it is wrong.

I represented the appellant before the First-Tier Tribunal and the Upper Tribunal, where he had the role of the respondent following an appeal by the Secretary of State for the Home Department (‘SSHD’), on instructions from Alex Beadon of Legal Rights Partnership.

2. The Home Office Guidance on EU Settlement Scheme (EUSS)

Before I set out the Upper Tribunal’s reasoning, some context is necessary. On 14 December 2022, the SSHD published the 6th version of its guidance to caseworkers titled EU Settlement Scheme: person with a Zambrano right to reside. This version first introduced the ‘realistic prospect’ test as a component of the ‘compulsion test’ in the definition of ‘person with a Zambrano right to reside’ in Annex 1 of Appendix EU to the Immigration Rules. The guidance advised caseworkers that, when assessing whether the British citizen, of whom an applicant is the primary carer, would in practice be unable to reside in the UK, the EEA or Switzerland if the applicant in fact left the UK for an indefinite period (the ‘compulsion test’), a ‘2-step consideration’ was required:

First, you must consider whether the applicant would be required to leave the UK for an indefinite period if their EU Settlement Scheme application as a ‘person with a Zambrano right to reside’ is refused.

This includes an assessment of whether the applicant either has or could obtain lawful immigration status. If, as a result of the refusal of their EU Settlement Scheme application, the applicant would not in fact leave the UK for an indefinite period, then the applicant will not meet this criterion.

You must base your assessment on the applicant’s individual circumstances. Some examples of how to approach this assessment are set out below. These are:

The applicant used to have Appendix FM leave

The applicant has since been granted Appendix FM leave

The applicant was previously refused under Appendix FM or Article 8 ECHR

The applicant has never applied under Appendix FM or Article 8 ECHR

If you conclude the applicant would not in fact be required to leave the UK for an indefinite period, then the British citizen would be able to continue to reside in the UK. Consequently, this criterion would not be satisfied.

[…]

Second, if you conclude the applicant would in fact be required to leave the UK for an indefinite period, you must consider whether this means the British citizen would in practice be unable to reside in the UK, the EEA or Switzerland: see Alternative care arrangements.

The guidance appeared to attribute this approach to the Court of Appeal’s judgment in Velaj v SSHD [2022] EWCA Civ 767 (31 May 2022), where it was held that the compulsion test requires a fact-based enquiry and should not be based on a hypothetical, assumed or counter-factual premise. The subsequent versions of the guidance, including the current version 8.0, maintained this approach.

3. The EU Settlement Scheme (EUSS) Application

The appellant in Maisiri (I will refer to the parties as they were before the First-Tier Tribunal in line with the Upper Tribunal’s judgment) was a national of Zimbabwe, who had arrived in the UK in 2004 and overstayed. He claimed asylum in 2009 but he was unsuccessful. On 25 June 2021, the appellant applied for limited leave to remain (‘pre-settled status’) under Appendix EU as a person with a Zambrano right to reside, on the basis that he was the joint primary carer of his British citizen daughter, born on 9 October 2016. The other joint primary carer, the appellant’s partner and his daughter’s mother, was settled in the UK. The application stated that the appellant’s daughter would be unable to remain in the UK if he left, as she was dependent on him for her care due to her mother suffering from arthritis, causing chronic pain, and mental health problems.

The application was refused on 18 January 2023. The decision-maker did not accept that the appellant had been a ‘person with a Zambrano right to reside’ because it was likely that the appellant would have qualified for leave under Appendix FM if he had applied for it. For this reason, it was considered that his daughter would have been able to reside in the UK, the EEA or Switzerland. Effectively, having not taken issue with the appellant’s daughter’s inability to reside in the UK in his absence, the caseworker, following the approach in the guidance and citing Velaj, disputed that the appellant would be required to leave the UK despite having no leave to enter or remain and being liable for removal. Instead, the caseworker considered that the appellant “had a realistic prospect of being granted Appendix FM leave as a parent of a British citizen”, which was found to be negatively determinative of the outcome of the application.

4. The Appeal Before the First-Tier Tribunal

An appeal was made against this refusal and it came before First-Tier Tribunal Judge Ripley, at Hatton Cross, on 18 August 2023. The SSHD was not represented at that hearing. I should add that, at the start of the (public) hearing, Judge Ripley expressed her surprise regarding the lack of judicial authority on the SSHD’s approach, given that it had been eight months since the guidance had first been published. Having considered the skeleton argument and oral submissions, Judge Ripley considered the matter herself in the absence of authority. In her reserved decision, she confirmed her acceptance of the appellant’s arguments. She distinguished, on one hand, between cases where the third-country national applicant enjoys a right to reside under domestic law and where, as a result, following Akinsanya v Secretary of State for the Home Department [2022] EWCA Civ 37, the Zambrano right does not arise and, on the other hand, cases where the applicant does not have such as right but could apply for one. Judge Ripley held that there was a lack of European authority to support the SSHD’s guidance and the proposition relied on, which left the appellant vulnerable to removal. It was also held that the drafting of Appendix EU did not support the meaning sought to be attributed to it by the SSHD’s guidance. Having concluded that the appellant meets the definition of a ‘person with a Zambrano right to reside’ and satisfies the eligibility requirements for ‘pre-settled status’, Judge Ripley allowed the appeal on the basis that the decision was not in accordance with the provisions of Appendix EU.

5. The Appeal Before the Upper Tribunal

The SSHD sought and obtained permission to appeal to the Upper Tribunal, pleading that Judge Ripley’s decision was wrong in law. It was said that the likelihood of making a successful application for leave under Appendix FM was not a formal requirement but part of the detailed factual matrix to which the requirements of the Rules had to be considered.

Following a hearing on 22 January 2024 and written submissions on the judgment of Eyre J in R (Akinsanya & Aning-Adjei) v SSHD [2024] EWHC 469 (Admin) (‘Akinsanya No2’), published on 11 March 2024, the Upper Tribunal panel promulgated its decision on 21 June 2024, dismissing the SSHD’s appeal.

In its judgment, the Upper Tribunal panel confirmed that, following the hearing in January, it had concluded that the SSHD’s submissions and relevant guidance, were wrong as a matter of law, for three reasons:

Firstly, that the natural and ordinary meaning of the words used in the Immigration Rules did not suggest that the prospect of securing leave in another (non-Zambrano) category was a relevant consideration. Secondly, that the Secretary of State’s approach was not supported by authority. And, thirdly, that the “realistic prospect” test was likely to be unfair and unworkable in practice, whether for caseworkers or judges on appeal. We will explain those reasons in greater detail before turning to Eyre J’s decision in Akinsanya & Aning-Adjei and considering the correctness of our own initial conclusions in light of that decision and the submissions which were made about it.

The Upper Tribunal held that the ‘realistic prospect’ test was neither explicitly required by the Immigration Rules, nor could such a requirement be read into them. The focus of the compulsion test set out in the definition of ‘person with a Zambrano right to reside’ in Annex 1 of Appendix EU is ‘on the present reality of the case, and not on alternative hypotheses of what might happen in the event that an alternative route was explored.’

Despite the SSHD’s intention to reflect settled authority on the eligibility of Zambrano carers in formulating the Immigration Rules, the Upper Tribunal did not find any real support for the ‘realistic prospect’ test in any of the domestic or European authorities, particularly Velaj, on which the SSHD’s guidance relied on.

Additionally, it was held that the realistic prospect test was unfair, as it required an applicant to prove a matter which was not known to be in issue, and unworkable in practice, both at the initial decision-making stage and on appeal.

The Upper Tribunal panel held that Eyre J’s judgment in Akinsanya No2 reinforced their view that the realistic prospect test was not part of the factual analysis required by Appendix EU, having reached the same conclusion as Eyre J, albeit for slightly different reasons:

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.

The claimants’ refusals in Akinsanya No2 were reached on the basis that they, contrary to the appellant in Maisiri, had held leave to remain under Appendix FM, and their judicial review challenge was ultimately unsuccessful for that reason. Nonetheless, Eyre J held that it was relevant to consider whether, before the Withdrawal Agreement came into effect, the Zambrano right to reside extended to persons who had not been granted leave to remain under the Immigration Rules but who would have had a real prospect of obtaining such leave if they had applied for it. He held that “to the extent that the revised App EU and the Guidance were based on the view that a realistic prospect of obtaining leave excluded the Zambrano right they were based on a misunderstanding of the law applicable before the departure of the United Kingdom from the European Union.”

The Upper Tribunal panel noted from the material which was before Eyre J that the SSHD had specifically opted, when framing the Zambrano provisions in Appendix EU in light of the Court of Appeal’s judgment in Akinsanya, to “continue to exclude from EUSS eligibility under the Zambrano category those with limited leave under another route at the end of the transition period, but include those with, at that point, a realistic prospect of obtaining such leave.” This was held to reinforce the Upper Tribunal’s first conclusion, reached following the January 2024 hearing, in relation to the construction of the Rules:

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. (para 92)

The summary of the Upper Tribunal’s decision and reasoning is set out in paragraph 93 of its judgment:

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.

In paragraphs 94 and 95, the Upper Tribunal makes a final observation, stemming from the closure of the Zambrano route to new applicants as of August 2023. The panel stresses that, in the event that a person’s EUSS Zambrano appeal is dismissed on the grounds that there is a realistic prospect of obtaining leave under Appendix FM, and they subsequently make a paid application for leave under Appendix FM, which is ultimately unsuccessful, they will be unable to make another valid application as a Zambrano carer because the route has closed. As such, the Upper Tribunal states there is every reason not to dismiss the appeal on this basis, and highlights the possibility of an appeal being stayed whilst an application under Appendix FM is decided.

It should be noted that the Upper Tribunal panel has twice qualified this observation: paragraph 94 commences with “[i]f we are wrong with these conclusions”, and paragraph 95 includes the statement “[i]f what we have said in the preceding paragraphs does not represent the law”. The panel also confirmed that “a pending appeal against the adverse decision under Appendix EU should be decided on the basis of the actual facts, as and when they are known”. It is therefore clear that the suggestion of an appeal being stayed would have only been relevant in the event that the Upper Tribunal’s decision had been reversed or overruled, which it has not. The Upper Tribunal has ruled that the SSHD’s approach is not supported by either the current construction of the Rules, or domestic and European jurisprudence, and that the ‘realistic prospect’ test has no part in the compulsion test. Its remarks in paragraphs 94 and 95 are, therefore, clearly made in the alternative. Even if the ‘realistic prospect’ assessment had been appropriate, the danger in which appellants would be placed if their appeals were dismissed before consideration of an alternative application for leave, in view of the closure of the Zambrano route, would have left them in an untenable position.

Consequently, I do not read paragraphs 94 and 95 as either having binding force, or as diluting the Upper Tribunal’s conclusions set out in paragraph 93. Any suggestion to the contrary is, in my view, bound to fail. The headnote of the judgment undoubtedly confirms that the decision-maker considering either the application or the appeal of a person with a Zambrano right to reside is not required to consider whether that person has a realistic prospect of securing leave to remain under another provision of the Rules.

Remarkably, the guidance of 14 December 2022 is not the first time that the SSHD has formulated such an approach to EUSS Zambrano claims. Even prior to the UK’s withdrawal from the European Union and the introduction of the EUSS, the SSHD has refused cases on the basis that the Zambrano circumstances did not obtain unless there had been a prior attempt to secure leave under Article 8 ECHR. This was based on a passage from Irwin LJ’s judgment in Patel v The Secretary of State for the Home Department [2017] EWCA Civ 2028, at paragraph 76:

Quite a number of years ago, Parliament chose to abrogate the historic approach that marriage to a British citizen would bring, in effect automatically, residence in Britain for the spouse. No such automatic consequence now follows, see s.6(2) of the British Nationality Act 1981 and s.2 of the Nationality, Immigration and Asylum Act 2002. Those who marry a British citizen and have children, without having (or acquiring) leave to remain, do so at the risk that they may be compelled to leave the country, facing the real quandary that arises for these families. The Zambrano principle cannot be regarded as a back-door route to residence by such non-EU citizen parents.

Of course, as with Velaj, the ratio of Patel did not have the meaning that the SSHD sought to import to it. That the Zambrano principle cannot be regarded as a back-door route to residence by non-EU citizen parents does not reflect a requirement that such parents attempt to obtain leave on a different basis before the right can arise. It simply means that the Zambrano right stemmed from the right of an EU national, under the Treaties, not to be deprived of the benefits of their EU nationality by being compelled to leave the EU. The focus was on preventing the detriment to the EU national occasioned by the removal of their primary carer(s), as opposed to the preservation of family life (although the latter was also relevant in the case of children, per Chavez-Vilchez and Others (Union citizenship – Article 20 TFEU – Access to social assistance and child benefit conditional on right of residence in a Member State : Judgment) [2017] EUECJ C-133/15 and the Supreme Court’s judgment in Patel v Secretary of State for the Home Department [2019] UKSC 59).

Similarly, in Sanneh v Secretary of State for Work and Pensions [2015] EWCA Civ 49, the Court of Appeal rejected the Secretary of State’s submission that the Zambrano right only arises where there is an imminent prospect of removal, as opposed to throughout the period during which a person is liable for removal, with Elias LJ finding it “barely coherent”. The above examples, in addition to the circumstances set out in Maisiri, demonstrate a persistent misunderstanding with regard to the scope of the Zambrano right on the part of the SSHD.

Unfortunately, despite the fact that Maisiri has been promulgated for over two months and reported for over 3 weeks at the time of writing, the SSHD has yet to update its guidance in line with the Upper Tribunal’s findings. The ‘realistic prospect’ test remains part of the guidance, the current version of which (8.0) was published on 15 August 2023. As a result, the guidance does not reflect the correct legal position and is unlawful, per the Supreme Court’s judgment in R (A) v Secretary of State for the Home Department [2021] UKSC 37. Nonetheless, until it is either amended, withdrawn, declared unlawful or quashed, the risk that decision-makers apply the ‘realistic prospect’ test, contrary to the Upper Tribunal’s judgment in Maisiri, remains high. In turn, EUSS Zambrano applicants may have their applications refused and appeals dismissed on the basis of a test that is held to have been wrong from its inception.

What happens then, to those individuals who have either already had or who might, in the future (provided that they made an application by 8 August 2023, unless they already hold pre-settled status or a relevant EUSS family permit), have their applications refused on this basis? Unless their appeal rights have been exhausted, there is a possibility of an out-of-time appeal with an application to extend time raising the new development in case law with Maisiri, coupled with the closure of the Zambrano EUSS route. As reasonable as this may be in principle, it cannot be guaranteed that such applications will be granted or that such appeals will be instituted. Further, this is not an option for individuals whose appeal rights have already been exhausted, particularly following the curtailment of Cart JR by the Judicial Review and Courts Act 2022.

In my view, it is the SSHD’s responsibility to provide restitutio ad integrum to those individuals whose applications for leave under the EUSS were refused on the basis that was deemed wrong by the Upper Tribunal in Maisiri. This should involve no less than restoring them to the position in which they would have been, had the SSHD not erred in its consideration of their applications.

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