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The first issue: whether the appellant’s Article 24(2) case is a “new matter”
The first issue: whether the appellant’s Article 24(2) case is a “new matter”
We must first consider whether the Article 24(2) submissions are a “new matter”.
Under regulation 9(4), this tribunal may consider any matter which we think is relevant to the substance of the decision appealed against. But, pursuant to para. (5), we must not consider a “new matter” without the consent of the Secretary of State. A “new matter” is defined in regulation 9(6) in these terms:
“(6) A matter is a ‘new matter’ if—
(a) it constitutes a ground of appeal of a kind listed in regulation 8 or section 84 of the 2002 Act, and (b) the Secretary of State has not previously considered the matter in the context of—
(i) the decision appealed against under these Regulations, or
(ii) a section 120 statement made by the appellant.”
If the appellant’s case based on Article 24(2) amounts to a “new matter”, therefore, we have no jurisdiction to consider it absent consent, which has been refused.
It is common ground that the Article 24(2) matter constitutes a ground of appeal of a kind listed in regulation 8 of the 2020 Regulations. Regulation 8(2)(a) provides that a ground of appeal is that the decision breaches any right which the appellant has by virtue of Article 24(2) of the WA.
The essential question is whether, “the Secretary of State has not previously considered the matter in the context of… the decision appealed against” for the purposes of regulation 9(6)(a)?
For the appellant, Mr Jafferji accepts that the application did not, in terms, refer to Article 24(2) of the WA, but submitted that its references to regulation 16(3) and (4) of the 2016 Regulations were sufficient. Those paragraphs of regulation 16 were made to implement the decisions of the Court of Justice of the European Union in Ibrahim and Teixeira (see also Velaj at para. 23). Article 24(2) of the WA was intended to place on a Treaty-based footing the derivative rights in Ibrahim and Teixeira. Thus the application placed before the Secretary of State the substantive issues addressed by Article 24(2), requiring the same analysis, albeit using different terminology.
Mr Deller submitted that the appellant’s application dated 29 December 2020 was expressly submitted on the basis of her claimed (and now abandoned) Zambrano rights. While the appellant’s cover letter referred to regulation 16(3) and (4) of the 2016 Regulations, it did not refer to the WA at all. Nor did she use the specified form for derivative rights applications.
- 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