Iyabode Adeola Ayoola v Secretary of State for the Home Department
[2024] UKUT 143 (IAC)
The Secretary of State for the Home Department v Sylvia Sonkor
20 April 2023
[2023] UKUT 276 (IAC)
Upper Tribunal
A mom caring for her British kids tried to get UK residency through a special rule (Zambrano). Even though she met some requirements, a different rule said she couldn't use that special rule because she already had a different type of residency. The court decided she couldn't get the special residency.
Key Facts
- •Ms. Sonkor, a Ghanaian citizen, is the primary carer of two British children.
- •She held limited leave to remain under Appendix FM of the Immigration Rules.
- •She applied for leave to remain under the EU Settlement Scheme (EUSS) based on a Zambrano right to reside.
- •The Secretary of State refused her application, citing a realistic prospect of obtaining further leave under Appendix FM.
- •The First-tier Tribunal allowed her appeal.
- •The Upper Tribunal found an error of law in the First-tier Tribunal's decision.
Legal Principles
The EUSS makes limited provision for Zambrano carers to be entitled to leave to remain.
UKUT-IAC 2023 276
A Zambrano applicant under the EUSS holding non-EUSS leave cannot be a "person with a Zambrano right to reside" under Annex 1 to Appendix EU of the Immigration Rules.
UKUT-IAC 2023 276
R (Akinsanya) v Secretary of State for the Home Department [2022] EWCA Civ 37 does not support a different approach regarding Zambrano rights and existing leave to remain.
UKUT-IAC 2023 276
Appendix EU of the Immigration Rules defines a "person with a Zambrano right to reside" and excludes those with other leave to remain.
UKUT-IAC 2023 276
Regulation 16(5) of the 2016 Regulations sets criteria for a derivative right to reside for primary carers of British citizens.
UKUT-IAC 2023 276
Outcomes
The Upper Tribunal set aside the First-tier Tribunal's decision.
The First-tier Tribunal Judge erred in law by failing to consider paragraph (b) of the definition of "person with a Zambrano right to reside" in Annex 1 to Appendix EU, which excludes applicants with other leave to remain.
The appeal was dismissed.
Ms. Sonkor held leave under Appendix FM at the time of her application, precluding her from meeting the definition of a "person with a Zambrano right to reside" in Appendix EU.
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