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Opinion: The Home Office’s EUSS Zambrano Guidance is Unlawful

In the realm of immigration and residency, understanding the intricacies of legal guidance is paramount. On 14 December 2022, the Home Office released the 6th iteration of its guidance titled “EU Settlement Scheme: person with a Zambrano right to reside.” This comprehensive guide was pivotal for caseworkers, shedding light on the assessment process for individuals seeking residency rights within the UK. Specifically, it addressed a significant change introduced in response to the Court of Appeal judgment in Velaj v SSHD [2022] EWCA Civ 767 (31 May 2022). Central to this change was the evaluation of whether a British citizen could practically reside in the UK, the European Economic Area, or Switzerland should the applicant depart for an indefinite period. This article delves into the nuances of this guidance, critically assessing its alignment with the Velaj case and EU law concerning the free movement of individuals. Moreover, it scrutinises the potential implications of these interpretations and their compliance with legal precedents, aiming to provide clarity in a complex legal landscape.

The 6th Iteration of Home Office Guidance

The 6th iteration of the Home Office guidance to its caseworkers titled “EU Settlement Scheme: person with a Zambrano right to reside” was published on 14 December 2022. One of the changes it brought from the previous version purported to include the provision of “further guidance, following the Court of Appeal judgment in Velaj v SSHD [2022] EWCA Civ 767 (31 May 2022), about how to assess whether the British citizen would in practice be unable to reside in the UK, the European Economic Area or Switzerland if the applicant in fact left the UK for an indefinite period.”

The guidance notes that in Velaj, the Court of Appeal held that the assessment requires a fact-based enquiry into whether, in practice, the British citizen would be unable to remain in the UK, an EEA Member State or Switzerland, if the applicant were in fact required to leave the UK for an indefinite period. It also stated that the assessment is not to be based on a hypothetical, assumed, or counterfactual premise. So far so good. This is indeed what the Court of Appeal held in Velaj.

Nonetheless, the Home Office guidance goes further: it states that the assessment includes considering whether the third-country national applicant could obtain lawful immigration status. Particularly, it states that the caseworker should consider whether the applicant has a realistic prospect of being granted leave to remain under Appendix FM, or based on their private life or long residence. If the caseworker considers that the applicant could qualify for leave, the guidance states they would not be satisfied that the applicant would leave or would have left the UK for an indefinite period and, by extension, that the British citizen would be unable to continue living in the UK.

Changes Introduced by the 8th Version of the Guidance

This interpretation of Velaj has been maintained in subsequent iterations of the Home Office guidance, including the current 8th version. Additionally, these later versions advise caseworkers to consider (and implicitly reject) the credibility of claims of financial barriers to alternative applications, or claims that a British citizen would be unable to reside in the UK even if the applicant were granted non-Appendix EU limited leave, on the basis that alternative routes may have a fee waiver policy, no condition prohibiting employment or self-employment, or the possibility of an application to lift a “no recourse to public funds” condition.

The Velaj Case and Its Interpretation

In my view, this is not in accordance with the principle set out by the Court of Appeal in Velaj, nor in accordance with EU law relating to the free movement of persons. Velaj was explored in a previous article.

Of course, EU law relating to free movement has now been repealed in the UK and persons with a Zambrano right to reside were not included in the Withdrawal Agreement. It was for that reason that the Home Office was able to close the category to new applicants (other than for those who hold pre-settled status or an EUSS Family Permit on this basis) from 8 August 2023.

However, the Home Office guidance seeks to interpret the relevant requirement of Appendix EU, namely that the applicant is a “person with a Zambrano right to reside” and the relevant part of its definition in Annex 1, that “the British citizen would in practice be unable to reside in the UK, the European Economic Area or Switzerland if the person in fact left the UK for an indefinite period” in accordance with EU law. Otherwise there would not have been reference to Velaj in an EUSS guidance, as Velaj was concerned with the correct interpretation of the now repealed regulation 16(5)(c) of the Immigration (European Economic Area) Regulations 2016, which sought to implement EU free movement law.

As such, if the Home Office guidance is wrong in its interpretation of Velaj (and, by extension, of EU free movement law), then it is unlawful. Individual  refusals of Appendix EU applications reached on the basis of that wrong interpretation and by applying that part of the guidance would also be unlawful. Similarly, in Akinsanya v Secretary of State for the Home Department [2022] EWCA Civ 37, the Secretary of State had accepted that her intention, in framing the Annex 1 definition of “person with a Zambrano right to reside”, was that it should accurately state the actual right to reside enjoyed by Zambrano carers in the UK. If, despite that intention, the Secretary of State had misunderstood the correct legal position in framing the definition, she accepted that it would be unlawful to make decisions on that basis (para 34). This intention to interpret the EUSS Zambrano provisions on the basis of EU law provides the necessary connective link, notwithstanding that EU law no longer applies in the UK.

The position set out in the Home Office guidance, purportedly following Velaj, is different from that in Akinsanya. The latter was concerned with applicants who had extant leave to remain in the UK, which is also a separate, negative requirement of the definition of “person with a Zambrano right to reside” in Annex 1 of Appendix EU. The guidance is concerned with applicants who did and do not already have leave to remain in the UK on another basis, but who might be eligible for it.

It is difficult to see the connection between the principle in Velaj and the meaning the Home Office guidance seeks to impart it with. In Velaj, the First-tier Tribunal had proceeded on the hypothetical basis that both primary carers, namely Mr Velaj and his wife, would leave the UK, contrary to what Mr Velaj’s wife, a British citizen, had said in evidence. Mrs Velaj had said that “she would not go to Kosovo with her husband if he were deported, as she could not leave his mother and the children in the United Kingdom.” In those circumstances, the Court of Appeal considered that it was counterfactual to assume that Mrs Velaj would leave the UK and that the compulsion test required a fact-sensitive inquiry, rather than a hypothetical or counterfactual scenario. 

The question of what would happen to her and Mr Velaj’s son had to be, thus, considered on the factual basis that Mrs Velaj would remain in the UK. It was an established fact that Mrs Velaj was a British citizen, who therefore had a right of abode in the UK and was not legally compelled to leave. It was further common ground that Mr Velaj’s son “would be able to stay in the UK with his British Citizen mother, who shared primary caring responsibilities with his father and who would not leave the UK if he were returned to Kosovo”.

The Home Office guidance seeks to equate the position of Mrs Velaj, or, more generally, of a joint primary carer, who is not only entitled to remain in the UK, but also can and intends to do so, with that of an EUSS applicant who does not and, at the material time, did not have leave to remain in the UK. Not only is this distinguishable from Velaj, it is also inconsistent with domestic and EU case law.

Legal Precedents and Their Applicability

In Sanneh v Secretary of State for Work and Pensions [2015] EWCA Civ 49, the Court of Appeal wholly rejected the Secretary of State’s submission that a Zambrano right only arises if there is an imminent prospect of removal, rather than when a person is liable for removal, with Elias LJ finding it “barely coherent”. Underhill LJ referred to Sanneh in Akinsanya and distinguished it from cases where the Zambrano carer had leave to remain (as in Akinsanya), implicitly affirming Sanneh for cases without leave. 

In Ruiz Zambrano (European citizenship) [2011] EUECJ C-34/09, the Zambrano carers (parents) had been refused asylum but there were orders preventing their refoulement to their country of nationality. The Court of Justice of the European Union considered that derivative rights arose nonetheless. 

In 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, the primary carer had obtained a residence permit by the time of consideration, but the Court of Justice ruled that it was still necessary to consider whether she had a Zambrano right to reside before that time, therefore confirming that even where a residence permit is later obtained (and, by extension, was available), this does not negate the existence of a right of residence in the preceding period.

In Velaj itself, although obiter, Andrews LJ mentioned that a Zambrano right can arise in certain circumstances where the person has limited leave. Of course, such persons are explicitly excluded from the EUSS definition of “person with a Zambrano right to reside” but this is a separate matter. Andrews LJ’s comment referred to circumstances where a primary carer would still be required to leave the UK (and EEA and Switzerland), and by extension a British citizen would be compelled to leave with them, despite the former having limited leave to remain.

Challenging Unlawful Guidance: A Way Forward

In the EUSS guidance, the Home Office is rehashing effectively the same position that was previously rejected by the Court of Appeal in Sanneh (with reference to the 2006 Regulations at that point) as barely coherent. This position was also previously being followed by the Home Office, as I remember, in purported reliance on the Court of Appeal’s judgment in Patel v The Secretary of State for the Home Department [2017] EWCA Civ 2028 (but not the subsequent Supreme Court judgment in the same case).  Nonetheless, it clearly does not follow from Velaj, Patel, nor is it otherwise consistent with case law. 

Unfortunately, the Home Office guidance containing this unlawful position has been present for more than nine months at this stage and decisions continue to be made on that basis. It should be noted that the contents of a policy document do not necessarily reflect the correct legal position and can, thus, be unlawful (per R (A) v Secretary of State for the Home Department [2021] UKSC 37). Individual decisions made on the basis of such guidance can also be challenged independently (as part of a  statutory appeal, for example) as they would, themselves, be unlawful.

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