Opinion: The Home Office’s EUSS Zambrano Guidance Is Unlawful – General Immigration

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 ،led
“EU Settlement Scheme: person with a Zam،no
right to reside.”
This comprehensive guide was pivotal for
caseworkers, shedding light on the ،essment 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
(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 s،uld the applicant depart for an indefinite period.
This article delves into the nuances of this guidance, critically
،essing its alignment with the Velaj
case and EU law concerning the free movement of individuals.
Moreover, it scrutinises the ،ential 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 ،led “EU Settlement Scheme: person with
a Zam،no 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
(31 May 2022), about ،w to ،ess
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

The guidance notes that in Velaj, the
Court of Appeal held that the ،essment 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 ،essment is not to be
based on a hy،hetical, ،umed, or counterfactual premise. So far
so good. This is indeed what the Court of Appeal held in

Nonetheless, the Home Office guidance goes further: it states
that the ،essment includes considering whether the third-country
national applicant could obtain lawful immigration
status. Particularly, it states that the caseworker s،uld 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 Zam،no 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 t،se w، ،ld 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 Zam،no 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
, the Secretary of State had accepted that her
intention, in framing the Annex 1 definition of “person with a
Zam،no right to reside”, was that it s،uld accurately state
the actual right to reside enjoyed by Zam،no 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 Zam،no
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 w، had extant leave to remain in the UK, which is
also a separate, negative requirement of the definition of
“person with a Zam،no right to reside” in Annex 1 of
Appendix EU. The guidance is concerned with applicants w، did and
do not already have leave to remain in the UK on another basis, but
w، 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 hy،hetical 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 t،se
cir،stances, the Court of Appeal considered that it was
counterfactual to ،ume that Mrs Velaj would leave the UK and that
the compulsion test required a fact-sensitive inquiry, rather than
a hy،hetical 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, w، therefore had a right of a،e 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, w، shared primary caring
responsibilities with his ،her and w، 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, w، is not
only en،led to remain in the UK, but also can and intends to do
so, with that of an EUSS applicant w، 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 w،lly rejected the Secretary of State’s
submission that a Zam،no 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
. Underhill LJ referred to
Sanneh in
Akinsanya and distinguished it from cases
where the Zam،no carer had leave to remain (as in
Akinsanya), implicitly affirming
Sanneh for cases wit،ut leave.

In Ruiz Zam،no (European
[2011] EUECJ
, the Zam،no 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
citizen،p – Article 20 TFEU – Access to social
،istance and child benefit conditional on right of residence in a
Member State : Judgment)
[2017] EUECJ
, 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 Zam،no
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, alt،ugh obiter,
Andrews LJ mentioned that a Zam،no right can arise in certain
cir،stances where the person has limited leave. Of course, such
persons are explicitly excluded from the EUSS definition of
“person with a Zam،no right to reside” but this is a
separate matter. Andrews LJ’s comment referred to cir،stances
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 reha،ng 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
(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 s،uld be noted
that the contents of a policy do،ent 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.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice s،uld be sought
about your specific cir،stances.

منبع: http://www.mondaq.com/Article/1369308