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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
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:
“(1) A person has a derivative right to reside during any period in which the person –
(a) Is not an exempt person; and
(b) Satisfies each of the criteria in one or more of paragraphs (2) to (6)
…
(5) The criteria in this paragraph are that –
(a) the person is the primary carer of a British citizen (‘BC’);
(b) BC is residing in the United Kingdom; and
(c) BC would be unable to reside in the United Kingdom …if the person left the United Kingdom for an indefinite period.
…
(7) In this regulation –
…
(c) An ‘exempt person’ is a person –
…
(ii) who has the right of abode under section 2 of the 1971 Act; or
…
(iv) who has indefinite leave to remain
(8) A person is the ‘primary carer’ of another person (‘AP’) if –
(a) the person is a direct relative or a legal guardian of AP ; and
(b) either –
(i) the person has primary responsibility for AP’s care; or
(ii) shares equally the responsibility for AP’s care with one other person who is not an exempt person.
(9) In paragraph …5(c), if the role of primary carer is shared with another person in accordance with paragraph 8(b)(ii), the words ‘the person’ are to be read as ‘both primary carers’.”
- 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