[2023] UKUT 00162 (IAC)

Before turning to the jurisdiction issue, it is necessary to set out the factual background to the Appellant’s case as certain facts are relevant to the jurisdiction issue.

The Appellant entered the UK as a student on 3 October 2009. His leave in that capacity was extended to 16 October 2013. Thereafter, he overstayed.

Having made two applications for a residence card in 2013 and 2014 both of which were refused, and which led to appeals which the Appellant withdrew, on 20 June 2016, the Appellant applied for leave based on his family life. He was granted leave to remain until 21 April 2019.

On 5 April 2019, the Appellant sought further leave as an unmarried partner (I assume of [JD]). That was granted until 19 November 2021.

On 5 October 2019, the Appellant made an application for status under the EUSS. That was refused on 11 June 2020 which decision was upheld following administrative review on 3 July 2020.

On 30 June 2020, the Appellant made the application under the EEA Regulations which led to the decision under appeal made on 22 September 2020.

On 16 June 2021, the Appellant made an application under the EUSS which was refused. An appeal hearing in November 2021 was adjourned and that appeal remains stayed.

The Appellant’s application under the EEA Regulations is premised mainly on his relationship with his child [P] who has behavioural problems. [P] was born in January 2016 and is therefore currently aged seven years. The Appellant claims a “Zambrano” derivative right to reside as he says that if he returned to Nigeria, [JD] and their children, in particular [P] would have to leave with him. [P] is a British citizen. [JD] is also a British citizen as is his other child born in May 2017. [JD] has a further child born in April 2012. The Appellant and [JD] now have a further young baby.

The Respondent’s decision under appeal refused the application under the EEA Regulations on the basis that there was insufficient evidence to show that [P] lives with the Appellant, that the Appellant makes decisions in relation to his welfare or that the Appellant is financially responsible for him. The Respondent did not accept that [P] would have to leave the UK if the Appellant were not granted a derivative right of residence as he could remain with his mother ([JD]) who could continue to care for him. It was pointed out that the Appellant could make an application to remain under Appendix FM to the Immigration Rules based on his family life. The Respondent noted that the Appellant previously had leave to remain on that basis so that it was likely that such an application could succeed (in fact it appears that the Appellant still had such leave at the date of the refusal letter). It was therefore not accepted that [P] would be required to leave the UK.