[2024] UKUT 00143 (IAC)

The essential question is whether the appellant’s 29 December 2020 application sufficiently raised the Article 24(2) WA matter she now seeks to rely upon, such that the Secretary of State may be taken to have “considered” that matter, for the purposes of regulation 9(6)(b)(i)? We conclude that it was not sufficiently raised in the course of the application to have been “considered” by the Secretary of State, for the following reasons.

First, the appellant did not refer to Article 24(2) of the WA in the application. The references in the appellant’s 29 December 2020 cover letter to regulation 16(3) and (4) of the 2016 Regulations were not references to the WA, still less to Article 24(2). Those paragraphs provide:

“(3)

The criteria in this paragraph are that

(a)

any of the person’s parents (“PP”) is an EEA national who resides or has resided in United Kingdom;

(b)

both the person and PP reside or have resided in the United Kingdom at the same time and during such a period of residence, PP has been a worker in the United Kingdom; and

(c)

the person is in education in the United Kingdom.

(4)

The criteria in this paragraph are that—

(a)

the person is the primary carer of a person satisfying the criteria in paragraph (3) (“PPP”);

and

(b)

PPP would be unable to continue to be educated in the United Kingdom if the person left the United Kingdom for an indefinite period.”

Article 24(2), as may be seen from para. ‎15, above, takes a completely different textual form to regulation 16(3) and (4) of the 2016 Regulations. There is an air of unreality to the submission that, by relying on the latter, the appellant was, in substance, raising the former.

We also consider that, if, pursuant to AK and IK, reliance on a different category of the Immigration Rules based on the same facts is a new matter, it follows that reliance on an entirely different legal instrument is likely to be a new matter.

Secondly, the provisions of the 2016 Regulations referred to in the 29 December 2020 letter are several steps removed from Article 24(2). It is difficult to see how the Secretary of State could reasonably be expected to understand that the appellant was, in fact, advancing an Article 24(2) claim without mentioning it, in these circumstances. Regulation 16(3) and (4) of the 2016 Regulations may be traced back to regulation 15A(3) and (4) of the 2006 Regulations (see the Table of Equivalences at para. 1(3) of Schedule 7 to the 2016 Regulations). Regulation 15A(3) and (4) of the 2006 Regulations were inserted by the Immigration (European Economic Area) (Amendment) Regulations 2012 (SI 2012/1547), the Explanatory Note for which explains that those amendments were made in order to implement the decisions of the Court of Justice in Ibrahim and Teixeira. Thus the matter purportedly raised by the appellant in her application would have required the Secretary of State to trace the provisions of the 2016 Regulations mentioned in the 29 December 2020 letter back to the 2006 predecessor Regulations, identify the 2012 amending instrument which inserted regulation 15A(3) and (4) into those Regulations, and identify that the appellant was seeking to rely on an Ibrahim and Teixeira matter. In turn, the Secretary of State would have had to identify that this was, in fact, a reference to Article 24(2), such that, without mentioning it, the appellant had invited the Secretary of State to grant her application on that basis. It would be wholly unreasonable and unrealistic to expect the Secretary of State to infer those omitted details.

Thirdly, the appellant applied using the form for applications as a Zambrano carer. The details she gave in the completed application form pertained to Zambrano considerations, rather than the factors going to an assessment under Article 24(2) or the EUSS provisions giving effect to Article 24(2). See Section 5 of the form, concerning her caring responsibilities for O, and Section 6, concerning why O would be unable to continue to reside in the UK in the event that she, the appellant, were required to leave. Reliance was placed on O being a British citizen and not on her being the direct descendant of an EU worker. The application form relied on a Zambrano right to reside, not an Article 24(2) assessment. Although the covering letter set out a factual matrix which might have given rise to a derivative right under the 2006 Regulations and 2016 Regulations, no reliance was placed on the WA. The covering letter set out the appellant’s case based on Appendix EU to the Immigration Rules and made no mention of the WA at all; likewise the appellant’s skeleton argument before the First-tier Tribunal.

Fourthly, the application was submitted on the premise that the appellant was entitled to settled status. Settled status is the terminology of the EUSS, not the WA. While the WA makes some provision for the right of permanent residence to be enjoyed by some beneficiaries, the right is not extended to Article 24(2) beneficiaries. An Article 24(2) right is precarious, as its continuing validity is conditional upon the child or person in education continuing to be “in education”. The right could come to an end if a child leaves education prematurely.

Drawing this analysis together, we conclude that the Article 24(2) matter had not been sufficiently relied upon by the appellant in the course of the application to the Secretary of State for it to be regarded as having been “considered” by the Secretary of State in the context of the decision appealed against for the purposes of regulation 9(6)(b)(i). It was simply too far removed from the matters raised in the application to merit a conclusion that it had been “considered” by the Secretary of State. It was a “new matter”.

Mr Deller confirmed that the Secretary of State did not consent to the new matter being considered by the Upper Tribunal. It follows that we do not have the jurisdiction to make findings on the new matter, and the sole basis upon which the appellant seeks to challenge the Secretary of State’s decision to refuse her EUSS application has fallen away. We therefore remake the appeal by dismissing it.