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The Respondent’s grounds are brief and therefore bear setting out in full
The Respondent’s grounds are brief and therefore bear setting out in full:
“The Judge of the First-tier Tribunal has made a material error of law in the Determination. The Tribunal has misconstrued the combined effect of the decision of the Administrative Court in Akinsanya and the Court of Appeal’s dismissal of the Secretary of State’s Appeal. Although the latter Court held – as Judge Colvin notes – that the unambiguous wording of Regulation 16(7) defeated the argument that a right of residence was not held by a person with limited leave on a different basis, it upheld the Secretary of State’s ground that the Ruiz Zambrano right was one of last resort, which had underpinned the policy and the Scheme rules. Specifically the Court did not declare the impugned rule unlawful or indicate that only a rule with the opposite effect could exist. Accordingly the only available statutory ground of appeal available absent any rights under the Withdrawal Agreement – that the decision was not in accordance with Scheme rules – is currently inchoate pending the post-Akinsanya review of the relevant rules. Accordingly the appeal has been allowed on no clear statutory basis.”
Permission to appeal was granted by First-tier Tribunal Judge Seelhoff on 27 May 2022 in the following terms so far as relevant:
“... 2. The grounds assert that the Judge erred in that, although there are issues regarding the approach to take to Zambrano cases, she did not identify the legal basis on which the appeal was allowed.
3. The judge has not identified which provisions of the Immigration Citizenship Rights Appeals (EU Exit) Regulations 2020 form the basis for allowing the appeal. Although there are problems regarding the approach to Zambrano cases the Rules have not been set aside and the judge has not articulated if and how the Withdrawal Agreement might apply.
4. The grounds are arguable.”
The matter comes before us to decide whether the Decision contains a material error of law. If we find it does, we then have to decide whether to set aside the Decision. If we do so, it is then necessary to consider whether to re-make the decision in this Tribunal or remit the appeal to the First-tier Tribunal for that purpose.
We had before us a core bundle of documents relating to the appeal as well as the Respondent’s and Appellant’s bundle before the First-tier Tribunal. We do not need to refer to the documents as the issue is one of pure law.
Having heard submissions from Mr Kotas and Mr Thompson, we indicated that we would reserve our decision and issue that in writing which we now turn to do.
- 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