Upper Tribunal Immigration and Asylum Chamber

[2025] UKUT 00351 (IAC)

Fecha: 09-Jun-2025

Background

Background

The procedural background to the appeal is of some importance. Below, we set out a chronology of the key events:

14 July 2005: TV, the appellant’s second of three children, was born. He is an Italian citizen.

18 March 2009: TV’s father died.

16 June 2014: the appellant entered the UK and has resided here since.

September 2014: TV entered the UK education system.

9 July 2016 – 8 January 2019 & 14 August 2019 – 14 February 2022: the appellant had leave to remain as a parent granted under Appendix FM of the Immigration Rules.

2 July 2017: the appellant’s third child is born; he is a British citizen.

1 August 2018: the appellant married AJ, a British citizen.

6 April 2022: TV was granted settled status under Appendix EU of the Immigration Rules.

12 June 2023: the certificate of application confirmed that the appellant’s application under Appendix EU was received by the respondent.

3 August 2023: the respondent refused the application. In the refusal decision, it was noted that the application had been made on the basis of a person with a derivative right to reside. It was decided that the applicant did not meet the eligibility criteria because her residence status as person with a derivative right ended on 9 July 2016 when she was granted leave to remain under Appendix FM. The reasoning to support this conclusion was set out in the following terms:

The reason for this is that, at the specified date and during the period set out above, you did not satisfy sub-paragraph (c)(iii) of the definition of a ‘person with a derivative right to reside’ in Annex 1 to Appendix EU.

While EU law applied in the UK, a primary carer of an EEA citizen child could only have a derivative right to reside in the UK if denying that right to reside would compel the EEA citizen child to leave the UK.

Sub-paragraph (c)(iii) of the definition of a ‘person with a derivative right to reside’ therefore requires that, throughout the continuous qualifying period which began before the specified date in which you rely on being a ‘person with a derivative right to reside’, the Ibrahim and Teixeira child would in practice be unable to continue to be educated in the UK if you in fact left the UK for an indefinite period.

In accordance with the Court of Appeal judgment in Velaj v Secretary of State for the Home Department [2022] EWCA Civ 767 (paragraphs 47-52), the decision-maker has to consider whether, in practice, the child would be unable to continue to be educated in the UK if the applicant was in fact required to leave the UK for an indefinite period. This is a fact-specific enquiry and is not to be based on a hypothetical or counterfactual assumption.

It is not accepted that you satisfied sub-paragraph (c)(iii) of the definition because from the information and evidence provided or otherwise available, it is considered that [TV] would not have been in practice be compelled to leave the UK if you were required to leave the UK for an indefinite period. This is because Home Office records show that you were granted leave to remain in the UK under Appendix FM of the Immigration Rules on 09 July 2016 which expired on 08 January 2019 and on 14 August 2019 which expired on 14 February 2022 after 11pm on 31 December 2020.