Upper Tribunal Immigration and Asylum Chamber

[2024] UKUT 00143 (IAC)

Fecha: 04-Mar-2024

Notice of Decision

Notice of Decision

The decision of First-tier Tribunal Judge Colvin allowing the appellant’s appeal involved the making of an error of law and is set aside.

We remake the decision, dismissing the appeal.

Stephen H Smith

Judge of the Upper Tribunal

Immigration and Asylum Chamber

13 March 2024

ANNEX: ERROR OF LAW DECISION

Upper Tribunal

(Immigration and Asylum Chamber)

THE IMMIGRATION ACTS

Heard at Field House, London	Determination promulgated
On Friday 28 October 2022	…………………………………

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