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Appeal under the 2020 Regulations
Appeal under the 2020 Regulations
The appellant now accepts that she cannot qualify under the provisions of the EUSS relating to a Zambrano right to reside, in light of Velaj v Secretary of State for the Home Department [2022] EWCA Civ 767 and Sonkor (Zambrano and non-EUSS leave) [2023] UKUT 276 (IAC).
The appellant instead contends that she is entitled to a right to reside on the basis of the rights established by Ibrahim v Harrow London Borough Council (Case C-310/08) and Teixeira v Lambeth London Borough Council (Case C-480/08). Those rights were previously transposed by regulation 16(3) and (4) of the 2016 Regulations, and now find expression in Article 24(2) of the WA (“Article 24(2)”). Article 24(2) provides:
“2. Where a direct descendant of a worker who has ceased to reside in the host State is in education in that State, the primary carer for that descendant shall have the right to reside in that State until the descendant reaches the age of majority, and after the age of majority if that descendant continues to need the presence and care of the primary carer in order to pursue and complete his or her education.”
The appellant’s case is that an Article 24(2) right to reside, implemented by leave granted under the EUSS, more accurately reflects the rights that she and her daughter enjoy under the WA than the leave she holds under Appendix FM. This is because fees under the EUSS are lower, the conditions would be less restrictive, and the potential duration of the right extends beyond O’s 18th birthday, lasting until she has completed her further education. In turn, this would give the appellant confidence that she would be able to secure indefinite leave to remain on a ten-year long residence basis elsewhere under the Immigration Rules.
For the Secretary of State, Mr Deller submits that the Article 24 issue is a new matter, for which consent is withheld under regulation 9 of the 2020 Regulations (“regulation 9”). He submitted that the Secretary of State had not seen sufficient evidence to be able to decide whether the circumstances of O and the appellant fall within Article 24(2). In any event, the appellant’s case fails because it should be assessed on the same practical, rather than hypothetical, basis as applies to Zambrano cases. The appellant has leave. There is no question that either she or O will have to leave the UK.
We are grateful to Mr Broachwalla for his skeleton arguments dated 25 May 2023, 26 October 2023 and 3 March 2024, and to Mr Deller for his skeleton arguments dated 3 January 2023 and 15 December 2023, and to Mr Jafferji and Mr Deller for the quality of their oral submissions.
- Heading
- There are two principal controversial issues in these proceedings
- Procedural background
- Factual background
- The EUSS application
- The EUSS decision dated 10 May 2021
- Appeal under the 2020 Regulations
- The first issue: whether the appellant’s Article 24(2) case is a “new matter”
- New matter: legal framework
- Matter must be sufficiently clear
- Article 24(2) WA not raised by the application
- Article 24 considered in the alternative
- Secretary of State’s decision not in breach of any right of the appellant under Article 24(2)
- Notice of Decision
- Before
- The Respondent accepted that the Appellant is the primary carer of a British citizen child. The issue was said by Judge Colvin to be “whether the appellant should have made an application under the Im
- The Respondent’s grounds are brief and therefore bear setting out in full
- DISCUSSION AND CONCLUSIONS We begin our consideration by setting out the Judge’s reasons for allowing the appeal as follows
- We begin with the case of Akinsanya . In the Administrative Court ([2021] EWHC 1535 (Admin), Mostyn J held that, when including within the definition of “a person with a Zambrano right to reside” in A
- The Secretary of State appealed Mostyn J’s judgment which came before the Court of Appeal on 7 December 2021. By its judgment dated 25 January 2022 ( [2022] EWCA Civ 37 ) the Court allowed the Secreta
- Broadly, the outcome of Akinsanya was that the Secretary of State agreed to reconsider the relevant provisions of Appendix EU and agreed that she would not determine any applications under Appendix EU
- Mr Kotas drew our attention to the case of Velaj v Secretary of State for the Home Department [2022] EWCA Civ 767 (“ Velaj ”). Although Velaj could not have been before Judge Colvin as the judgment po
- Although we accept Mr Thompson’s submission that the case of Velaj is different on its facts to Akinsanya , what is important is the Court’s consideration of the central issue set out at [35] of the j
- We accept as the Court of Appeal indicated at [45] when recording the Secretary of State’s submission, that Velaj was concerned with a different provision of Regulation 16 which was not so clearly wor
- As Mr Kotas pointed out, therefore, Akinsanya was squarely concerned with the interpretation of Regulation 16(7) whereas Velaj was concerned with Regulation 16(5) which, as Judge Colvin noted at [10]
- We also record that Mr Thompson accepted that this was not an “ Akinsanya case” although that was for different reasons. He said that Akinsanya had no application to this case because, in Akinsanya
- In addition to that point, Mr Thompson relied on Patel . Judge Colvin referred in this regard to the Appellant’s submission that the Respondent had relied on the Court of Appeal’s judgment in that cas
- As Mr Thompson pointed out, Patel was concerned with the factors relevant to a Zambrano right, in particular what was meant by “unable to reside” in the EEA Regulations 2006. The case of Patel involve
- Whilst we readily accept that those are the principles which apply to the question whether Regulation 16(5) is met when considered as a whole, as Mr Kotas submitted and we accept, it says nothing abou
- Ultimately, the only issue which we have to consider at this stage is whether Judge Colvin erred in law when reaching her decision allowing the appeal. As Judge Seelhoff pointed out when granting perm
- The Judge could only allow the appeal on the basis that the Respondent’s decision was not in accordance with the Rules in relation to the EUSS or not in accordance with the Withdrawal Agreement. The W
- Conclusions