[2024] UKUT 00143 (IAC)

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 Immigration Rules or Article 8” following the Court of Appeal’s judgment in Akinsanya v Secretary of State for the Home Department [2022] EWCA Civ 37 (“Akinsanya”) (see [3] of the Decision). The Respondent’s case in very broad summary is that the Appellant would not be required to leave the UK as she had leave to remain at the time of the application and the “specified date” under the EUSS. Accordingly, she was not entitled to a “Zambrano” right to reside.

At [10] of the Decision, the Judge asserted that “[t]he core issue in this appeal is whether the respondent has misdirected herself as to the meaning and effect of EEA Regulation 16(5)(c)” (that is to say paragraph 16(5)(c) of the Immigration (European Economic Area) Regulations 2016 (“the EEA Regulations”). Having set out her reasoning in that paragraph, [11] and [12] of the Decision, she concluded that she had “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” ([13] of the Decision). She went on to say that, applying that regulation as she considered it should be interpreted “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”.