[2024] UKUT 00143 (IAC)

Mr Jafferji’s Article 24(2) submissions are as follows. O is a “direct descendent” of an EEA worker, Ms Drame, her former step-mother. O is in education in the UK. Article 24(2) entitles O’s primary carer, the appellant, to a right to reside while O is in education. It does not matter that O is now a British citizen. She should not be disadvantaged on account of her integration in the UK, as the former step-child of an EEA national exercising Treaty Rights. Pursuant to Baumbast v Secretary of State for the Home Department (Case C-413/99) [2003] ICR 1347, as expounded in Ibrahim and Teixeira, O is entitled to complete her education under the “best possible conditions” (see Ibrahim at paras 31 and 55). The Article 8-based limited leave to remain held by the appellant is insufficient for that purpose. It is time limited, subject to restrictive conditions, and a fee is charged for an application. It does not lead to settlement on the same basis that EUSS-based leave could. Article 24(2)-based leave under the EUSS would have the beneficial characteristics to which Baumbast held O and the appellant are entitled.

Mr Deller submitted that the core characteristic of an Article 24(2) derivative right is the compulsion to leave. Since the appellant holds Article 8 leave under Appendix FM that question simply does not arise. She cannot meet the Article 24(2) criteria.

We will assume for present purposes that O is a “direct descendent” of a worker, since the term includes step-children (see Alarape and anr (Article 12, EC Reg 1612/68) Nigeria [2011] UKUT 413 (IAC)), and it is unlikely that O’s father’s separation from Ms Drame could deprive O of that status. We also assume for the purposes of the analysis that follows that O’s acquisition of British citizenship does not deprive the appellant of the benefits of any derivative rights to which she may otherwise be entitled as O’s primary carer.

We have concluded that the Secretary of State’s decision did not breach any rights the appellant enjoyed under Article 24(2) for the reasons set out below.

First, the appellant already holds leave. Her removal is not in issue. Not only does she hold limited leave to remain under Appendix FM until December 2024, but the Secretary of State also observed in the refusal decision that a further application under Appendix FM would have a realistic prospect of success. That is sufficient to address the mischief at which Article 24(2) is targeted.

As Andrews LJ held in Velaj at para. 33,

“…the premise upon which the impact on the British Citizen dependant’s rights is considered is, and always has been, expressed in exactly the same terms for a Zambrano carer as it is for a Chen or Ibrahim/Teixeira carer, and that this was a matter of deliberate choice.”

Mr Jafferji submitted that the above extract was obiter, and made without consideration of the key holdings in Baumbast, Ibrahim and Teixeira, concerning residence in the host state under the “best possible conditions”. We respectfully disagree. Her Ladyship referred to those cases in detail at paras 23, 24, 33, 38 and 50. There is simply no basis for us to entertain Mr Jafferji’s bold submission that she did not have the full circumstances of those authorities firmly in mind. The consistency of approach in Ibrahim, Teixeira and other derivative rights cases was a central issue in the case. The para. 33 observations were not obiter.

In any event, in Baumbast, Ibrahim and Teixeira, the reference to the child, or direct descendent of a worker, residing under “the best possible conditions” is a proxy for a right to reside. Such a right to reside was necessary to guarantee the effectiveness of the directly effective right to access education conferred upon the children of workers by Article 12 of Regulation 1612/68. It did not convey any expectation of permanence, and did not count towards the acquisition of the right of permanent residence under Directive 2004/38/EC: see Alarape and Tijani (Case C-529/11) [2013] 1 W.L.R. 2883. That is consistent with an Article 24(2) right to reside not being included in the class of residence rights under the WA that lead to the acquisition of permanent residence.

Secondly, we consider that the appellant’s present Appendix FM leave (and the realistic prospect the Secretary of State considers that she has of a future application being successful) is capable of providing a more advantageous immigration status than Article 24(2). As we have observed above, Article 24(2) is conditional upon the child in question remaining “in education”. While there is absolutely no basis to conclude on the material before us that O would do anything other than continue the good progress she is making at school, at a general level it remains possible that an Article 24(2) child could leave education before reaching the age of majority, thereby leading to any Article 24(2) right enjoyed by the child’s carer potentially falling away. By contrast, the continued applicability of the appellant’s Appendix FM leave is not conditional on the actions of a child but continues until at least the child’s age of majority (assuming that the parent/child relationship subsists).

The remaining submissions made by Mr Jafferji focussed on the conditions to which the appellant’s Appendix FM leave is subject. We are not persuaded by these submissions. It is open to the appellant to apply for a fee waiver in respect of the fee, as she has done in the past: see para. 19 of her statement dated 15 September 2023. The appellant also said in her statement that she is unable to access student finance on the same basis as a home student. In our judgment, that is not a matter for these proceedings. Article 24(2) is silent as to the ability of its beneficiaries to access student finance and, pursuant to Velaj at para. 33, the litmus test for determining a breach of the provision is whether O would be compelled to leave. In that regard, given the appellant’s Appendix FM leave, and her accepted realistic prospect of securing a renewal, there is presently no risk of the appellant’s removal.

Even had the Secretary of State consented to us considering the Article 24(2) matter, therefore, we would have dismissed the appeal in any event.