The Secretary of State for the Home Department v Sylvia Sonkor
[2023] UKUT 276 (IAC)
Secretary of State for the Home Department v Gabriel Tichaona Maisiri
14 June 2024
[2024] UKUT 235 (IAC)
Upper Tribunal
The court decided that the government's rule about checking if a parent who is protecting a British child can get a visa in another way before giving them a visa to stay is wrong. The rule is unfair and doesn't follow the law. The court said the government should only check if the parent already has another visa.
Key Facts
- •Gabriel Maisiri, a Zimbabwean national, applied for leave to remain in the UK under the EU Settlement Scheme (EUSS) as a Zambrano carer.
- •His application was refused because the Secretary of State believed Maisiri had a 'realistic prospect' of obtaining leave under Appendix FM of the Immigration Rules.
- •The First-tier Tribunal allowed Maisiri's appeal, finding the Secretary of State's 'realistic prospect' assessment to be unlawful.
- •The Secretary of State appealed to the Upper Tribunal.
Legal Principles
It is not necessary to assess whether a Zambrano carer has a realistic prospect of securing leave under another provision of the Immigration Rules.
This decision (Maisiri)
Immigration Rules should be interpreted according to their natural and ordinary meaning.
Odelola v SSHD [2009] UKHL 25; Mahad v ECO [2009] UKSC 16
A Zambrano right is not excluded where a carer has a realistic prospect of obtaining leave, only where they have already obtained leave.
R (Akinsanya & Aning-Adjei) v SSHD [2024] EWHC 469 (Admin)
Velaj v SSHD does not support the 'realistic prospect' test.
Velaj v SSHD [2022] EWCA Civ 767
Outcomes
The Upper Tribunal dismissed the Secretary of State's appeal.
The 'realistic prospect' test in the Secretary of State's guidance is unlawful; it's not supported by the Immigration Rules, relevant authorities, or sound legal principles. Its application is unfair and unworkable.
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