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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 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 Respondent’s decision dated 22 September 2020, refusing his application for a “Zambrano” right to reside under the Immigration (European Economic Area) Regulations 2016 (“the EEA Regulations”). Although the EEA Regulations have since been revoked, they are preserved for the purpose of pending applications and appeals by transitional arrangements.
The Appellant’s application was based on the position of his child [P] who is a British Citizen. [P] lives with his mother and the Appellant. The Respondent refused the application on the basis that the Appellant had not demonstrated by evidence that he is the primary carer of [P], that [P] would not have to leave the UK if the Appellant were required to leave as his mother [J] is also a British citizen and that the Appellant in any event had leave to remain due to his relationship with [P] and based on his Article 8 ECHR rights and would not therefore have to leave the UK. He could be expected to make a further application relying on his Article 8 rights which would have a “realistic prospect of success”.
The Decision is a short one. The Judge found that the Appellant is not [P]’s primary carer, that [J] could in any event care for [P] in the Appellant’s absence and that the Appellant also had leave to remain and was therefore excluded under the EEA Regulations.
- 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