![[2024] UKUT 00143 (IAC)](https://backend.juristeca.com/files/emisores/logo_AioYBzS.png){kind=logo}
Procedural background
Procedural background
These questions arise in the context of an appeal brought by the appellant, a citizen of Nigeria born in November 1977, against a decision of the Secretary of State dated 10 May 2021 to refuse her application under the EUSS as a “person with a Zambrano right to reside”, made under Appendix EU of the Immigration Rules on 29 December 2020. For a discussion of the so-called ‘Zambrano’ right to reside, see R (Akinsanya) v Secretary of State for the Home Department [2022] EWCA Civ 37, paras 8 to 15. The appeal was brought under regulation 3(1) of the 2020 Regulations.
The appellant’s appeal against the Secretary of State’s decision was originally heard and allowed by First-tier Tribunal Judge Colvin by a decision dated 9 March 2022. The Secretary of State appealed. By a decision promulgated on 7 December 2022, Upper Tribunal Judge Smith sitting with Deputy Upper Tribunal Judge Cotton allowed the Secretary of State’s appeal, on the basis that the judge had failed to provide reasons for allowing the appeal, and erred in relation to the law applicable to Zambrano rights of residence (see the Annex). The panel set aside the decision of the First-tier Tribunal, and gave directions for the decision to be remade in the Upper Tribunal, acting under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007.
Unfortunately, there were a number of delays to the resumed hearing taking place in the Upper Tribunal. The substantive resumed hearing was effective before us on 4 March 2024.
- 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