United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2023-003479
	First-tier Tribunal No: EA/11385/2022

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 13 January 2025

 

Before

 

DEPUTY UPPER TRIBUNAL JUDGE BEN KEITH

 

Between

 

The Secretary of State for the Home Department

Appellant

and

 

Olabisi Fausat Kazeem

(NO ANONYMITY ORDER MADE)

Respondent

Representation :

For the Appellant: Mr T Melvin, Home Office Presenting Officer

For the Respondent: No attendance

 

Heard at Field House on 30 January 2024

 

DECISION AND REASONS

1.               The Secretary of State appeals the decision of First-tier Tribunal Judge Shergill dated the 21 June 2023 in which the judge allowed Miss Kazeem's appeal and found that she qualified as a Zambrano carer.

2.               The appellant is a national of Nigeria, with leave to remain in the United Kingdom under the Immigration Rules. However, the application under the Zambrano principles was refused by the Secretary of State on 27 October 2022 because the Secretary of State said the appellant did not qualify under the Immigration (Citizens' Rights Appeals) (EU Exit) Regulations because the appellant had no relevant EU qualifying leave prior to the Withdrawal Agreement. The Secretary of State has appealed that and permission has been granted.

3.               In the skeleton argument the Secretary of State cites the case of Sonkor (Zambrano and non-EUSS leave) [2023] UKUT 276 (IAC) which was promulgated on 20 April 2023. The headnote of that case is on all fours with this case. The headnote states:

"1.   The EU Settlement Scheme ('EUSS') makes limited provision for certain Ruiz Zambrano v Office National de l'Emploi [2011] Imm AR 521 carers to be entitled to leave to remain, as a matter of domestic law.

2.   A Zambrano applicant under the EUSS who holds non-EUSS limited or indefinite leave to remain at the relevant date is incapable of being a 'person with a Zambrano right to reside'. Pursuant to the definition of the term in Annex 1 to Appendix EU of the Immigration Rules.

3.   Nothing in R (Akinsanya) v Secretary of State for the Home Department [2022] 2 WLR 681 , [2022] EWCA Civ 37 calls for a different approach."

4.               In this case the facts were accepted that this appellant did not have that relevant EU leave prior to the Withdrawal Agreement. In fact, the judge states at paragraph 7 of the judgment:

"7. The appellant applied on 24/06/21. I am satisfied that the appellant had limited leave to remain under Appendix FM and not Appendix EU at that time. Her section 3C leave took effect from 14/09/21 and she therefore continues to have valid limited leave to remain as originally granted. The Court of Appeal authority is binding on the tribunal and supports the appellant's claim to be eligible for a 'Zambrano grant' despite her being here with limited leave under Appendix FM rather than under EU Treaty/Appendix EU provisions."

5.               That was the judge referring to the case of Akinsanya, but as explained earlier, that was wrongly cited and in fact it is Sonkor that is the relevant case law. Given that this appellant had no relevant EU leave prior to the withdrawal date, she cannot qualify under the EUSS scheme as a Zambrano carer and I would find an error of law in the approach of the First-tier Tribunal Judge. Given that the facts are fully accepted and I go on to remake the decision and the only decision that is open to me is to allow the Secretary of State's appeal because Miss Kazeem cannot qualify under the EUSS scheme.

Postscript

6.               At the hearing, I was provided an email just before the hearing from the appellant's solicitors asking for the appeal to be withdrawn. The letter is entitled Notice of Withdrawal of Appeal from Thoree & Co Solicitors, entitled Mr Olabisi Fausat Kazeem, date of birth 13 ^th January 1978:

"We write with references to our clients' appeal matter. Please note that our client wish to withdraw her appeal in order to apply under the Immigration Laws.

We have attached the following:

1.        Her authority to withdraw

If you require any further information please feel free to contact us."

7.               It is of course not Mr Kazeem's appeal and therefore, whilst I understand that to be she does not oppose the appeal and is intending on applying under the Immigration Rules for leave, I still have gone on to decide the claim. In any event, I would have continued with the hearing given that no proper explanation was given as to why there was nobody in attendance. For all the reasons I have given, I find an error of law and allow the Secretary of State's appeal in this case.

Delay

8.               This judgment has been delayed by administrative error which was not picked up until January 2025 and I apologise to the parties for any inconvenience caused.

Notice of Appeal

9.               I allow the Secretary of State's appeal.

 

Ben Keith

 

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

13 January 2025