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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
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 Secretary of State’s appeal so far as that concerned the position under EU law ([57] of the judgment). However, the Court went on to point out that, when framing the definition in Annex 1 to Appendix EU, the Secretary of State may have intended to reflect the pre-existing position under Regulation 16. Accordingly, the Court went on to consider what was the pre-existing position under Regulation 16. This argument turned on the distinction between the reference to “indefinite leave” in the definition under Regulation 16(7) and the reference to “leave to enter or remain” in the Annex 1 definition. As the Court pointed out, it was always open to the Secretary of State to go beyond what EU law requires when formulating the position in domestic law. If that is what she had intended when drafting Regulation 16(7) then the definition in Appendix EU would not reflect the pre-existing position. The Court concluded at [66] of the judgment that “whatever the contextual considerations, the language of regulation 16(7)(c)(iv) is simply too clear to allow it to be construed as covering persons with limited leave to remain”. The conclusion in Akinsanya therefore turned on the Court’s interpretation of Regulation 16(7).
- 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