Tuesday 7th December 2021
Appeal by the SSHD against the order of Mostyn J of 09 June 2021 by which he declared that:
The SSHD erred in law when providing, in Annex 1 to Appendix EU to the Statement of Changes to the Immigration Rules HC 395 as amended, that the definition of a person with a Zambrano right to reside includes paragraph (b) a person without leave to enter or remain in the UK unless this was granted under this Appendix.
The guidance issued by the SSHD (1) Free Movement Rights; derivative rights of residence (version 5.0 of 02 May 2019) and (2) EU Settlement Scheme: person with a Zambrano right to reside (version 4.0 of 27 April 2021) is legally erroneous insofar as it states that a person who has limited leave to enter or remain in the UK cannot also have a derivative right to reside by virtue of regulation 16(1) of the Immigration (European Economic Area) Regulations 2016, by satisfying the criteria in regulation 16(5) of those Regulations.
Mostyn J quashed the SSHD’s decision of 29 September 2020 refusing the Respondent ILR under Appendix EU.