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DISCUSSION AND CONCLUSIONS We begin our consideration by setting out the Judge’s reasons for allowing the appeal as follows
DISCUSSION AND CONCLUSIONS
We begin our consideration by setting out the Judge’s reasons for allowing the appeal as follows:
“10. The core issue in this appeal is whether the respondent has misdirected herself as to the meaning and effect of EEA Regulation 16(5)(c). The Home Office Guidance, EU Settlement Scheme: person with a Zambrano right to reside (version 4.0 of 27 April 2021) sets out this interpretation at p.13:
‘A Zambrano right to reside is only available to a person who has no other means to remain lawfully in the UK as the primary carer of a dependent British citizen, or as a dependent of that primary carer.
As set out in sub-paragraph (b) of the definition of ‘a person with a Zambrano right to reside’ in Annex 1 to Appendix EU, an applicant cannot meet that definition if they have (or, as the case may be for the relevant period had) leave to enter or remain in the UK, unless this was granted under Appendix EU.
An applicant cannot therefore meet that definition if they have (or, as the case may be, for the relevant period had) leave to enter or remain granted under another part of the Immigration Rules (such as Appendix FM) or on a discretionary basis outside the Rules.’
It is submitted that this Guidance is incorrect and that there is no EU law requiring the respondent to deny that a person who may be eligible for leave to remain under a provision of the Immigration Rules cannot also be given a right to reside by the EEA Regulations. In particular, it is submitted that the respondent in her Guidance is relying on the Court of Appeal decision in this case of Patel whereas it is the Supreme Court decision at Patel v SSHD 2020 1 WLR 228 that must now be followed. The Supreme Court sets out the criteria that an applicant must meet and this does not include the criteria that a prior application must have been made under the immigration rules.
It is further submitted that in a consolidated group of appeals before First-tier Tribunal Judge Neville heard on 13 December 2019 and 17 January 2020 it was held that a person has a derivative right of residence notwithstanding that he or she has not yet made an application under the Immigration Rules or pursuant to Article 8. Further, the recent Court of Appeal decision in Akinsanya makes clear that the plain meaning of the words in Regulation 16 does not preclude an applicant who has been granted a limited leave to remain.
Conclusion
I have been assisted by the submissions made on behalf of the appellant as referred to above and have reached the conclusion that the current interpretation of Regulation 16(5)(c) of the EEA Regulations by the respondent as set out in the refusal letter is a misdirection for all the reasons given above. I am satisfied that the correct interpretation of Regulation 16(5)(c) is that the appellant has a derivative right of residence notwithstanding that she has not made an application under Appendix FM of the Immigration Rules or an Article 8 claim. As it is accepted that the appellant is the primary carer of her daughter, a British citizen, I am satisfied that she is a person with a Zambrano right to reside in relation to the EU Settlement Scheme.”
Before considering whether that analysis contains any error of law, it is necessary to set out what lies behind this appeal both in terms of fact and law. Dealing first with the facts, the Appellant was granted leave to remain on the basis of Article 8 ECHR because she has sole care of her British citizen daughter. She was granted leave to remain (on a 10-year route) in November 2016. That leave continued until 12 May 2021. Therefore, both at the time of the EUSS application and on the specified date under the EUSS (11pm on 31 December 2020) the Appellant had extant leave to remain. True it is that this leave came to an end shortly after the decision under appeal, but it remained open to the Appellant to extend that leave. In fact, Mr Kotas indicated that the Appellant now has further leave until 28 December 2024. That is not however something which can have a bearing on whether the Judge made an error of law in her legal analysis.
The Appellant’s appeal is under the Immigration Citizens Rights Appeals (EU Exit) Regulations 2020 (as the Judge noted at [8] of the Decision). Under those Regulations, the only ground of appeal is that the decision under appeal breaches either the Immigration Rules (“the Rules”) under which the decision was made or the withdrawal Agreement between the UK and EU (“Withdrawal Agreement”). We did not understand the Judge to be considering any issue under the Withdrawal Agreement. She does not mention it. Accordingly, her conclusion can only be that the decision was not in accordance with the Rules under which it was made.
That then brings us on to the relevant Rules. We did not discern any disagreement between the parties as to the Rules which apply. Those are to be found in Appendix EU to the Rules (“Appendix EU”).
The Respondent refused the Appellant’s application because she did not meet the definition of a “person with a Zambrano right to reside” in Annex 1 to Appendix EU. That definition paragraph reads as follows so far as relevant:
“a person who has satisfied the Secretary of State…, that, by the specified date, they are (and for the relevant period have been), or (as the case may be) for the relevant period in which they rely on having been a person with a Zambrano right to reside (before they then became a person who had a derivative or Zambrano right to reside) they were:
(a) resident for a continuous qualifying period in the UK with a derivative right to reside by virtue of regulation 16(1) of the EEA Regulations, by satisfying:
(i) the criterion in paragraph (1)(a) of that regulation;
and
(ii) the criteria in:(aa) paragraph (5) of regulation 16 of the EEA Regulations;… or
…; and
(b) without leave to enter or remain in the UK, unless this was granted under this Appendix.”
As is there made clear, the definition turns largely on paragraph 16 of the EEA Regulations. Paragraph 16 of the EEA Regulations (“Regulation 16”) reads as follows so far as relevant to our consideration:
“16. —(1) A person has a derivative right to reside during any period in which the person—
is not an exempt person; and
(b)satisfies each of the criteria in one or more of paragraphs (2) to (6).
…
…
…
The criteria in this paragraph are that—
the person is the primary carer of a British citizen (“BC”);
BC is residing in the United Kingdom; and
BC would be unable to reside in the United Kingdom or in another EEA State if the person left the United Kingdom for an indefinite period.
…
In this regulation—
(a)…;
(b)…;
an “exempt person” is a person—
who has a right to reside under another provision of these Regulations;
who has the right of abode under section 2 of the 1971 Act;
to whom section 8 of the 1971 Act, or an order made under subsection (2) of that section, applies; or
who has indefinite leave to enter or remain in the United Kingdom.
A person is the “primary carer” of another person (“AP”) if—
the person is a direct relative or a legal guardian of AP; and
either—
the person has primary responsibility for AP’s care; or
shares equally the responsibility for AP’s care with one other person who is not an exempt person.”
There was disagreement between Mr Kotas and Mr Thompson as to the case-law which applies in a case such as this. We have therefore reviewed the cases which the parties submitted were relevant and those which Judge Colvin considered were relevant.
- 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