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Osunneye (Zambrano; transitional appeal rights)
Heard at Field House
THE IMMIGRATION ACTS
Promulgated on 30 May 2023
Before
UPPER TRIBUNAL JUDGE SMITH
Between
ADEKUNLE OLUWASEUN OSUNNEYE
(NO ANONYMITY DIRECTION MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Osunneye appeared in person
For the Respondent: Ms A Nolan, Senior Home Office Presenting Officer
1. Following the UK’s withdrawal from the EU, the Immigration (European Economic Area) Regulations 2016 are continued for transitional purposes by statutory instruments including the Immigration and Social Security Coordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020 (SI 1309/2020).
2. Paragraph 5 of Schedule 3 to the 2020 Regulations deals with “Existing appeal rights and appeals”. Paragraph 6 of Schedule 3 then sets out the specified provisions of the EEA Regulations 2016. Neither regulation 16 nor 20 of the EEA Regulations are included in that schedule. Regulation 36 relating to appeal rights is. Schedule 2 to the EEA Regulations is also amongst the provisions continued as modified. At paragraph 6(cc), the modifications to that schedule are set out.
3. Those provisions draw a distinction between appeals which arise before or are against decisions taken before 31 December 2020 (paragraphs 5(1)(a) to (c)) and those against decisions taken after 31 December 2020 (paragraph 5(1)(d)).
4. Contrary to the unreported decision in Secretary of State for the Home Department v Oluwayemisi Janet James (UI-2021-000631; EA/05622/2020), the right of appeal against a decision made prior to 31 December 2020 therefore continues in force until finally determined (see in that regard paragraph 5(2) of Schedule 3 to the 2020 Regulations).
5. Part Four of the Withdrawal Agreement is concerned with transitional provisions which apply during the transition or implementation period between the date of the Withdrawal Agreement and 31 December 2020.
6. Part Four of the Withdrawal Agreement applies “Union law” during the transition period. The Zambrano right is a derivative one which depends on Article 20 Treaty for the Functioning of the European Union (TFEU). The TFEU is part of “the EU Treaties”. It is continued in force during the transition period.
DECISION AND REASONS
- Heading
- PROCEDURAL BACKGROUND
- FACTUAL BACKGROUND
- JURISDICTION
- THE APPELLANT’S CASE
- NOTICE OF DECISION
- Before
- The Appellant appeals against the decision of First-tier Tribunal Judge N M Paul promulgated 21 December 2021 (“the Decision”). By the Decision, the Judge dismissed the Appellant’s appeal against the
- The Appellant appealed on essentially three grounds which can be summarised as follows
- DISCUSSION We begin with the second of the Appellant’s grounds. That and the terms of the grant of permission appear to have led the Respondent to consider that this appeal might have wider implications arising
- The judgment of Mostyn J in Akinsanya was appealed to the Court of Appeal ( [2022] EWCA Civ 37 ). The Court of Appeal accepted that, under EU law, the Secretary of State was entitled to exclude from a
- We accept that the Court of Appeal’s judgment in Velaj v Secretary of State for the Home Department [2022] EWCA Civ 767 (“ Velaj ”) might have some bearing on this appeal but not for the reasons that
- Judge Paul’s findings are to be found at [8] and [9] of the Decision as follows
- We take the first and third of the Appellant’s grounds together as we consider that they overlap Prior to its revocation, Regulation 16 read as follows so far as relevant
- In Patel , the Supreme Court said the following about the test which applies where more than one person shares the care of a child
- Drawing together those two strands, the Judge has made the following errors
- Second, and flowing from that, as the Supreme Court in Patel made clear, the test whether a British Citizen (child) will be required to leave requires consideration of what the factual position will b
- Returning to the second ground, the Judge appears to have thought that the fact of the Appellant having leave to remain “excluded him from being considered under the EEA Regulations”. The fact that an
- We discussed with the parties what should happen next. Mrs Nolan had suggested that it might be necessary for the Respondent to file a detailed skeleton argument based on Akinsanya and Velaj . However
- CONCLUSION
- Conclusions