![[2023] UKUT 00162 (IAC)](https://backend.juristeca.com/files/emisores/logo_AioYBzS.png){kind=logo}
The Appellant appealed on essentially three grounds which can be summarised as follows
The Appellant appealed on essentially three grounds which can be summarised as follows:
Ground 1: The Judge failed to apply Regulation 16 of the EEA Regulations (“Regulation 16”);
Ground 2: The Judge relied on Home Office guidance found to be unlawful in the case of Akinsanya v Secretary of State for the Home Department [2021] EWHC 1535 (“Akinsanya”);
Ground 3: The Judge failed to have regard to the Supreme Court’s judgment in Patel and another v Secretary of State for the Home Department [2019] UKSC 59 (“Patel”);
Permission to appeal was granted by First-tier Tribunal Judge Austin on 8 February 2022 in the following terms so far as relevant:
“...3. The application raises an arguable ground that the decision was reached without full consideration of the Appellant’s Zambrano right and whether it is extinguished by a previous grant of leave under Appendix FM.”
The matter came before us to determine whether the Decision contains an error of law. If we were to conclude that it does, we must then decide whether the error should lead to a setting aside of the Decision and, if we set it aside, we must either re-make the decision or remit the appeal to the First-tier Tribunal to do so.
Having heard submissions from the Appellant and Mrs Nolan, and following discussion, Mrs Nolan conceded that the Decision contains an error of law. We accepted that concession and indicated that we would provide reasons for the concession and our acceptance of it in writing which we now turn to do.
- 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