![[2023] UKUT 00162 (IAC)](https://backend.juristeca.com/files/emisores/logo_AioYBzS.png){kind=logo}
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
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 applicant has any form of leave to remain might preclude a “Zambrano” application under Appendix EU succeeding (although we do not express any firm view about that since it is not relevant here). The position under the EEA Regulations, however, as confirmed by the Court of Appeal in Akinsanya, is that Regulation 16(7) precludes a “Zambrano” right only where an applicant has indefinite leave to remain. That is not the position here. Indeed, the Appellant told us that his leave to remain has now lapsed and he has not made an application for further leave based on his Article 8 ECHR rights.
For the foregoing reasons, the Appellant’s grounds, particularly grounds (1) and (3) disclose errors of law. The second ground does not disclose an error in the terms in which it is pleaded. The Judge made no mention of any guidance issued by the Respondent. He based his decision on an exclusion under the EEA Regulations suggesting that he considered that the EEA Regulations themselves precluded the Appellant’s right. That is legally incorrect.
Mrs Nolan’s concession was based on the first and third grounds. We accept her concession for the reasons given above.
- 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