Celik, the EUSS and human rights: without the Respondent’s consent the First-tier Tribunal Judge could not consider any Article 8 arguments in an EUSS appeal

Posted on September 26, 2022 by alicemuzira Standard Reply

“The Withdrawal Agreement lies at the heart of this case. It is therefore necessary to examine, in some detail, how the Withdrawal Agreement applies to a person, such as the appellant, who was (or may have been) in a durable relationship, prior to 31 December 2020, with an EU citizen but who did not marry the EU citizen until after that time”, paragraph 44 of Celik (EU exit, marriage, human rights) [2022] UKUT 220 (IAC) (19 July 2022)

The case of Batool & Ors (other family members: EU exit) [2022] UKUT 219 (IAC) (19 July 2022), amongst other matters, effectively provides for the definition of family members and other (or extended) family members within the meaning of Article 2.2 and 3.2 of Directive 2004/38/EC when considering an EUSS appeal. In particular, the fact that extended family members did not enjoy automatic residence rights under EU law and had to be the beneficiary of a positive exercise of discretion, recognised by the grant of residence documentation, is relevant to ascertaining the point from which they can establish they retain/preserve their rights of residence thus enabling them to rely upon the EU Settlement Scheme (“EUSS”).

Background

The Appellant, a citizen of Turkey, arrived in the United Kingdom in September 2007 and claimed asylum. The claim was refused, as was a subsequent appeal. His claim having been refused and appeal rights exhausted, since 8 April 2019 the appellant remained unlawfully in the United Kingdom.

The Appellant began a relationship with a Romanian national in December 2019. The couple began cohabiting sometime in or after February 2020. On 10 March 2020 the Romanian national was granted limited leave to remain in the United Kingdom, pursuant to Appendix EU of the Immigration Rules.

Having made an application on 19 October 2020, for leave to remain under the EUSS the Respondent refused the application on 2 March 2021 on the basis that the appellant had not been issued with a registration certificate, family permit or residence card under the Immigration (European Economic Area (Regulations) 2016 as an extended family member (durable partner) of the Romanian national; he therefore did not meet the requirements of the EUSS as a family member of a relevant EEA citizen. The appellant did not appeal against that decision.

On 20 October 2020, the Appellant made contact with Bracknell Forest Council’s Register Office, in order to secure a date for his wedding. On that date, the Appellant gave notice to the Register Office and paid them a fee of £50. The Appellant stated that it was due to Covid-19 restrictions and the lockdown rules which were in place at the time that he and his fiancée, were not given the date to get married before 31 December 2020. They only managed to get a date to get married on 9 April 2021.

Following his marriage, the Appellant made an application under the EU Settlement Scheme for leave to remain, on the basis that he was the spouse of a relevant EEA citizen. On 23 June 2021, the Respondent refused the Appellant’s application.

Application refused as a spouse and as a durable partner under the EU Settlement Scheme:

The Respondent within the refusal decision considered that the Appellant had, “not provided sufficient evidence to confirm that you were a family member of a relevant EEA citizen prior to the specified date, as defined in Annex 1 of Appendix EU (i.e. 2300 GMT on 31 December 2020). Your marriage certificate shows your marriage took place on 9 April 2021”.

The Respondent then considered whether the appellant met the eligibility requirements for settled status under the EU Settlement Scheme as a durable partner. Home Office records did not show that the Appellant had been issued with a family permit or residence card as the durable partner of the EEA national. Accordingly, the Respondent concluded that the Appellant did not meet the requirements for settled status under the EU Settlement Scheme.

On appeal, the Appellant’s appeal was dismissed by the First Tier Tribunal. His application for permission to appeal was granted to be heard in the Upper Tribunal.

Arguments raised by the Appellant

Amongst other arguments it was contended on the Appellant’s behalf:

the grounds of appeal permitted by regulation 8 of the Immigration( Citizens’ Rights Appeals) (EU Exit) Regulations 2020, the 2020 Regulations, entitled the Appellant to succeed, if he could demonstrate that the decision in his case was not a proportionate one.
the appellant was undoubtedly an applicant within the meaning of Article 18 of the Withdrawal Agreement and, accordingly, the First-tier Tribunal Judge was required to consider proportionality.
The sole effective reason why the appellant was refused limited leave to remain under paragraph EU14 of the Immigration Rules was that he married his wife after 11pm on 31 December 2020. By reason of Article 18(1)(r), the First-tier Tribunal Judge should have had regard to what was said to be the “undisputed facts and circumstances”, that the appellant’s marriage could not take place before the specified date, due to the Covid-19 pandemic and the resulting public emergency, all of which was beyond his control.
the principle of proportionality facilitates a deeper exploration of the fairness of the decision. On the facts, the appellant had a strong legal and moral case and it would be “staggeringly unjust” if he could not benefit from the EUSS, in all the circumstances.
If, contrary to the submissions, the appellant was unable to succeed as the spouse of an EU citizen, he should qualify as a durable partner. The suggestion that, in order to be durable, the relationship must have existed for at least two years is merely a “rule of thumb”: YB (EEA Reg 17(4), proper approach) Ivory Coast [2008] UKAIT 00062 (IAC). Furthermore, the definition of “durable partner” in Appendix EU expressly allows for a shorter period of residence if there is “other significant evidence of the durable relationship”.
there were such other significant evidence in the present case. The Appellant and his wife had provided considerable evidence of the durability of the relationship through witness statements, a tenancy Agreement, council tax bills, utility bills, photographs and letters of support. The fact that the couple continued to cohabit, as evidenced in utility bills etc from April to June 2022 is, significant evidence that the relationship was at all times durable.
The First-tier Tribunal Judge was wrong to hold, that the grounds of appeal in regulation 8 do not allow for an appeal to be advanced on human rights grounds. The Appellant has a family life with his wife and her daughter (now his stepdaughter); and that the undoubted interference with that life caused by the Respondent’s decision is a breach of Article 8 of the ECHR and Article 7 of the Charter of Fundamental Rights.

Applicable provisions- the Withdrawal Agreement:

The Upper Tribunal generally had this to say regarding the Withdrawal Agreement:

Article 126 provides for a transition period, which started on the day of the entry into force of the Withdrawal Agreement and ended at 23:00 hours GMT on 31 December 2020. During that period, EU law continued to apply in the United Kingdom. Thereafter, Article 4 provides for individuals to rely directly on the provisions of the Withdrawal Agreement, which meet the conditions for direct effect under EU law. In accordance with Article 4, the Withdrawal Agreement is given direct effect in the United Kingdom by section 7A of the European Union (Withdrawal) Act 2018.
Part 2 of the Withdrawal Agreement makes provision in relation to citizens’ rights. Article 10 sets out who is within scope of Part 2. That Part includes Article 18, upon which the appellant sought to rely.
“Family members “are defined in Article 9. The opening words of the definition of “family members” also require the person concerned to “fall within the personal scope provided for in Article 10” of the Withdrawal Agreement.
Article 10.2 and 10.3. provides: “2. Persons falling under points (a) and (b) of Article 3(2) of Directive 2004/38/EC whose residence was facilitated by the host State in accordance with its national legislation before the end of the transition period in accordance with Article 3(2) of that Directive shall retain their right of residence in the host State in accordance with this Part, provided that they continue to reside in the host State thereafter” and “3.Paragraph 2 shall also apply to persons falling under points (a) and (b) of Article 3(2) of Directive 2004/38/EC who have applied for facilitation of entry and residence before the end of the transition period, and whose residence is being facilitated by the host State in accordance with its national legislation thereafter”.
Article 3(2) of Directive 2004/38/EC requires Member States to “facilitate entry and residence” for “any other family members” who are dependents or members of the household of the Union citizen; or where serious health grounds strictly require the personal care of the family member by the Union citizen. A person is also within Article 3.2 if they are a “partner with whom the Union citizen has a durable relationship, duly attested”. For such persons, the host Member State is required to “undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people”.

As regards principles of EU law, the Upper Tribunal stated:

“69. We have earlier set out paragraph 73 of Mr Hawkin’s skeleton argument. At risk of repetition, we agree with Ms Smyth that the appellant cannot have regard to EU principles of law, the Citizens Rights Directive or the Charter of Fundamental Rights, except to the extent that this is required by the Withdrawal Agreement. In the present case, that Agreement does not require or permit a court or tribunal to do so. Directive 2004/38/EC no longer applies in the United Kingdom, as a general matter. The Charter of Fundamental Rights no longer applies: section 5(4) of the EU (Withdrawal Act 2018). Although part of “Union law” for the purposes of the Withdrawal Agreement, the Charter does not apply generally”.

Appellant not within scope of the Withdrawal Agreement -not a family member nor durable partner

The Upper Tribunal provided the following reasons why they considered the Appellant was not caught by the provisions of the Withdrawal Agreement:

The Appellant was not a family member to whom Part 2 of the Withdrawal Agreement applies. He was not a person who, in the words of Article 10.1(e)(i), resided in the United Kingdom in accordance with Union law before 11pm on 31 December 2020 and who continues to reside here afterwards. Nor does he fall within the scope of Article 10.1(e)(ii) or (iii).
The only way the Appellant could bring himself within the scope of Part 2 and, thus, Article 18, was if he fell within Article 10.2( set out above).
There can be no doubt that the Appellant’s residence in the United Kingdom was not facilitated by the Respondent before 11pm on 31 December 2020. It was not enough that the Appellant may, by that time, have been in a durable relationship with the person whom he married in 2021. Unlike spouses of EU citizens, extended family members enjoyed no right, as such, of residence under the EU free movement legislation. The rights of extended family members arose only upon their residence being facilitated by the respondent, as evidenced by the issue of a residence permit, registration certificate or a residence card: regulation 7(3) and regulation 7(5) of the 2016 Regulations.
If the appellant had applied for facilitation of entry and residence before the end of the transition period, Article 10.3 would have brought him within the scope of that Article, provided that such residence was being facilitated by the Respondent “in accordance with … national legislation thereafter”. This was not, however, the position. For an application to have been validly made in this regard, it needed to have been made in accordance with regulation 21 of the 2016 Regulations. That required an application to be submitted online, using the relevant pages of http://www.gov.uk, by post or in person, using the relevant application form specified by the respondent; and accompanied by the applicable fee.
After 30 June 2021, a favourable decision of the Respondent by reference to a pre-31 December 2020 application, results in a grant of leave under the EUSS, rather than a grant of residence documentation under the 2016 Regulations. The Appellant made no such application.
The above analysis was destructive of the Appellant’s ability to rely on the substance of Article 18.1. He had no right to call upon the Respondent to provide him with a document evidencing his “new residence status” arising from the Withdrawal Agreement because that Agreement gave him no such status. He was not within the terms of Article 10 and so could not show that he was a family member for the purposes of Article 18 or some other person residing in the United Kingdom in accordance with the conditions set out in Title II of Part 2.
The Appellant’s attempt to rely on his 2021 marriage to an EU citizen was misconceived. EU rights of free movement ended at 11pm on 31 December 2020, so far as the United Kingdom and the present EU Member States are concerned. The Withdrawal Agreement identifies large and important classes of persons whose positions in the host State are protected, following the end of the transition period. The appellant, however, did not fall within any such class.
It was not possible to invoke principles of EU law in interpreting the Withdrawal Agreement, save insofar as that Agreement specifically provides. This is apparent from Article 4(3). It is only the provisions of the Withdrawal Agreement which specifically refer to EU law or to concepts or provisions thereof which are to be interpreted in accordance with the methods and general principles of EU law. EU law does not apply more generally.
The clarity provided by Article 10 of the Withdrawal Agreement reflects the intention of the United Kingdom and the EU that the Agreement should ensure an orderly withdrawal of the UK; protect only those United Kingdom and EU citizens who were exercising free movement rights before a specific date (see the 6th recital); and provide legal certainty to citizens and economic operators as well as to judicial and administrative authorities (see the 7th recital).
Sub-paragraphs (a) to (d) of Article 18 make specific provision for late submission of an application for a new residence status. One looks in vain in Article 18 and elsewhere in the Withdrawal Agreement for anything to the effect that a person who did not meet the relevant requirements as at 11pm on 31 December 2020 can, nevertheless, be treated as meeting those requirements by reference to events occurring after that time. If that had been the intention of the United Kingdom and the EU, the Withdrawal Agreement would have so specified. Article 31 of the Vienna Convention on the Law of Treaties (1969) requires a treaty to be “interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”. It would plainly be contrary to the Vienna Convention to interpret the Withdrawal Agreement in the way for which the appellant contends.

Principle of proportionality( or fairness) inapplicable in order to compel the Respondent to grant the Appellant leave:

The Upper Tribunal noted that the Appellant placed great reliance on Article 18.1(r) of the Withdrawal Agreement which gives a right for “the applicant” for new residence status to have access to judicial redress procedures, involving an examination of the legality of the decision as well as of the facts and circumstances on which the decision is based. These redress procedures must ensure that the decision “is not disproportionate”.

The Upper Tribunal concluded:

The nature of the duty to ensure that the decision is not disproportionate must, however, depend upon the particular facts and circumstances of the applicant. The requirement of proportionality may assume greater significance where, for example, the applicant contends that they were unsuccessful because the host State imposed unnecessary administrative burdens on them. By contrast, proportionality is highly unlikely to play any material role where, as here, the issue is whether the applicant falls within the scope of Article 18 at all.
there was no dispute as to the relevant facts. The appellant’s residence as a durable partner was not facilitated by the Respondent before the end of the transitional period. He did not apply for such facilitation before the end of that period. As a result, and to reiterate, he could not bring himself within the substance of Article 18.1
Against this background, the Appellant’s attempt to invoke the principle of proportionality in order to compel the Respondent to grant him leave amounted to nothing less than the remarkable proposition that the First-tier Tribunal Judge ought to have embarked on a judicial re-writing of the Withdrawal Agreement. The First-tier Tribunal Judge quite rightly refused to do so.
Closely linked to the Appellant’s submissions on proportionality was his attempt to invoke the principle of fairness. The Appellant’s case is that he would have secured a date for his wedding to take place before 31 December 2020, but for the Covid-19 pandemic. Although there was nothing in the exchanges with the Register Office that confirms this assertion, the Upper Tribunal took the appellant’s case at its highest and assumed that this was so.
The Upper Tribunal concluded that even on that assumption, however, the principle of fairness could not assist the appellant. As is the case with proportionality, it did not give a judge power to disregard the Withdrawal Agreement.

Whether the First-tier Tribunal has jurisdiction, in an EUSS appeal, to consider human rights:

The First-tier Tribunal Judge stated that she “refused to consider an Article 8 argument, no human rights case having been made and it not been an available ground of appeal under the 2020 Regulations”.

It was submitted that the Appellant clearly had a family life with his wife and stepdaughter and that the undoubted interference with that life, occasioned by the Respondent’s decision, is a disproportionate interference with Article 8 of the ECHR.

The Appellant sought to rely on regulation 9(4) of the Immigration( Citizens’ Rights Appeals) (EU Exit) Regulations 2020, the 2020 Regulations. This provides that the relevant authority may also consider any matter which it thinks relevant to the substance of the decision appealed against, including a matter arising after the date of the decision. The Upper Tribunal considered that the word “also” signifies that regulation 9(4) is an addition to the requirement on the relevant authority to consider a matter raised in response to a notice issued by the respondent under section 120 of the Nationality, Immigration and Asylum Act 2020. A matter raised in such a statement must be considered if it constitutes a specified ground of appeal; that is to say a ground under regulation 8 or a ground mentioned in section 84 of the 2002 Act (international protection/revocation of protection status/human rights).

Regulation 9(5), however, provides that the power conferred by regulation 9(4) is limited, in that the relevant authority “must not consider a new matter without the consent of the Secretary of State”. Regulation 9(6) provides that a matter is a “new matter” if, inter alia, “it constitutes a ground of appeal of a kind listed in regulation 8 or section 84 of the 2002 Act”.

The Upper Tribunal considered that the first question was to decide whether the First-tier Tribunal has jurisdiction, in an appeal of this kind, to consider human rights. The question arose because decision-making under residence scheme immigration rules (Appendix EU) does not involve a consideration of the applicant’s (or any other person’s) rights under Article 8 of the ECHR.

The Upper Tribunal concluded as follows:

“93. In order for regulation 9(4) to come into play, two requirements must be satisfied. There must be a “matter”, in the sense of being the factual substance of a claim: Mahmud (s.85 NIAA 2002 – ‘new matters’) [2017] UKUT 00488 (IAC) at paragraph 29. Second, the matter must be “relevant to the substance of the decision appealed against”. The interpretation of the words “relevant to the substance of the decision”, as found in section 85(4) of the 2002 Act, was considered by the Supreme Court in Patel & Others v SSHD [2013] UKSC 72; [2014] Imm AR 456. Giving the lead judgment, Lord Carnwath (with whom Lord Kerr, Lord Reed and Lord Hughes agreed) upheld the “wide” construction of the words, which had been taken by the majority of the Court of Appeal in AS (Afghanistan) v SSHD [2011] EWCA Civ 833; [2011] Imm AR 832. Under this approach, the substance of the decision appealed against is no more than the decision to refuse to grant or vary leave to enter or remain (or entry clearance) as opposed to, for example, a “decision to refuse to vary leave to remain under rule x” (Sullivan LJ at paragraph 113).

94.Transposed to regulation 9 of the 2020 Regulations, the “decision appealed against”, is, in the present case, the decision to refuse to grant the appellant leave to enter or remain generally, as opposed to a decision to refuse him leave to enter or remain under the EUSS rules specifically.

95.This means that regulation 9(4) confers a power on the First-tier Tribunal to consider a human rights ground, subject to the prohibition imposed by regulation 9(5) upon the Tribunal considering a new matter without the consent of the respondent.

96.Given what we have said about the nature of the respondent’s decision-making under Appendix EU, the raising of a human rights claim will always be a” new matter”, except where, for some reason, the respondent has already considered it.

97.In the present case, the respondent’s consent was not sought by the appellant, let alone given. As a result, even though the First-tier Tribunal Judge might have been mistaken as to the ambit of regulation 9(4), any error in this regard is immaterial. Since the respondent had not consented, the First-tier Tribunal Judge was prevented by regulation 9(5) from considering any Article 8 argument.

98.As the respondent submits, if the appellant now wishes to claim that he should be permitted to remain in the United Kingdom in reliance on Article 8, he can and should make the relevant application, accompanied by the appropriate fee”.

Conclusion

Only some few paragraphs in Celik are dedicated to considerations of whether the First-tier Tribunal has jurisdiction, in an EUSS appeal, to consider human rights.

The rest of the Upper Tribunal’s judgement relates to reasoning and conclusions as regards how the Appellant missed an opportunity to either marry his EU partner( who was based in the United Kingdom) by 31 December 2020 or submit an application as an extended family member( durable partner) by the said date. Having done neither by 31 December 2020 he was not caught by the provisions of the Withdrawal Agreement and his EUSS application of 2021 accordingly failed.

Accordingly as per the summary Headnote in Celik :

“(1) A person (P) in a durable relationship in the United Kingdom with an EU citizen has as such no substantive rights under the EU Withdrawal Agreement, unless P’s entry and residence were being facilitated before 11pm GMT on 31 December 2020 or P had applied for such facilitation before that time.

(2) Where P has no such substantive right, P cannot invoke the concept of proportionality in Article 18.1(r) of the Withdrawal Agreement or the principle of fairness, in order to succeed in an appeal under the Immigration (Citizens’ Rights) (EU Exit) Regulations 2020 (“the 2020 Regulations”). That includes the situation where it is likely that P would have been able to secure a date to marry the EU citizen before the time mentioned in paragraph (1) above, but for the Covid-19 pandemic.

(3) Regulation 9(4) of the 2020 Regulations confers a power on the First-tier Tribunal to consider a human rights ground of appeal, subject to the prohibition imposed by regulation 9(5) upon the Tribunal considering a new matter without the consent of the Secretary of State”.

The result in Celik unfortunately leaves quite a few affected individuals having to resort to Article 8 applications either by reference to Appendix FM or Article 8 ground outside the Rules having regard to Exceptional Circumstances – along with the need in most cases to make provision for exorbitant Home Office application fees.

Extended family members following Batool(and Celik): why the odds were heavily stacked against the Appellants from the start

Posted on September 26, 2022 by alicemuzira Standard Reply

Following the departure of the United Kingdom from the European Union and in the context of the EU Settlement Scheme (“EUSS”), the Upper Tribunal in Batool & Ors (other family members: EU exit) [2022] UKUT 219 (IAC) (19 July 2022) considered the position of “other family members” within the meaning of Article 3.2 of Directive 2004/38/EC.

The definition of “other family members” is found in Article 3(2) of the Directive.

Until 31 December 2020, the Directive was implemented in the United Kingdom by means of the Immigration (European Economic Area) Regulations 2016, i.e the 2016 Regulations. These Regulations described other family members as “extended family members”.

FP6(1) of the EUSS was the relevant provision in the case of the Appellants in Batool. It required them to be “family members of a relevant EEA citizen”, as defined in Annex 1 – a “family member of a relevant EEA citizen” which must be a spouse, civil partner or durable partner of a relevant EEA citizen; or be the child or dependant parent of such a citizen, or of that citizen’s spouse or civil partner.

The Directive 2004/38/EC and the 2016 Regulations set out the definitions of family members and other(or extended) family members, in particular that other family members did not enjoy automatic residence rights under EU law: they had to be the beneficiary of a positive exercise of discretion, recognised by the grant of residence documentation.

Articles 9, 10 ad 18 of the Withdrawal Agreement are an aid in understanding the circumstances in which other(extended) family members can seek to establish that they retain/preserv their rights of residence thus enabling them to rely upon the EU Settlement Scheme (“EUSS”).

Directive 2004/38/EC and the 2016 Regulations- difference between Family members and Other( or extended) family members:

Family members:

Article 2(2) of the Directive provides that “family member” means:

“(a) the spouse;

(b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State;

(c) the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b);

(d) the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b)”.

Regulation 7 of the 2016 Regulations sets out the definition of family member.

‘close’ or “direct” family members can therefore include a spouse, civil partner, dependent child or dependent parent.

Other(or extended) family members:

Article 3(2) of the Directive requires other family members to be persons who do not fall within the definition of “family member” in Article 2:

“1. This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.

2.Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons:

(a) any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen;

(b) the partner with whom the Union citizen has a durable relationship, duly attested”.

Regulation 8 of the 2016 Regulations provides the definition of extended family members.

“other “ or ‘extended’ family member can for example be a brother, sister, aunt, uncle, cousin, nephew, niece or unmarried partner.

Other family members never enjoyed automatic residence rights under EU law. Not only did an individual have to satisfy the definition of other family member (extended family member under the 2016 Regulations); they also had to be the beneficiary of a positive exercise of discretion, recognised by the grant of residence documentation.

A host Member State is required by Article 3(2) to “undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people”.

Even if a person satisfies the requirements to be an other family member, Member States are under no obligation to accord that person a right of entry and residence. The obligation is merely to “facilitate” entry and residence.

An extended family member who had been issued with a residence card was, by reason of Regulation 7(3) of the 2016 Regulations to be treated as a family member, for as long as they continued to satisfy the relevant condition in regulation 8 and provided the residence card remained in force.

Therefore unlike the family members whose rights flow directly from their position as such, other/extended family members have no such status, unless and until issued with the relevant permit, certificate or card.

The Withdrawal Agreement- Family members and Other( or extended) family members:

The Withdrawal Agreement was signed on 19 October 2019. Article 126 contains a transition period. That period started on the day of entry and to force of the Agreement and ended on 23:00 hours GMT on 31 December 2020. During that period, EU law continued to apply in the United Kingdom.

Part 2 of the Withdrawal Agreement makes provision in relation to citizens’ rights. Both Articles 10 and 18 are contained within Part 2:

from Article 18.1 and 18.4, the Withdrawal Agreement allows a host State to introduce “constitutive residence schemes”, which means that EU citizens and their direct family members can now be required to apply for residence rights, as opposed to enjoying them by virtue of their status and activities in the host Member State.
Article 10.1(e) and (f) refer to “family members”. The expression “family members” is defined in Article 9. The definition does not encompass “other family members” within the meaning of Article 3(2) of the 2004 Directive. Such persons are brought within the application of Part 2 of the Withdrawal Agreement by Article 10.2 which states: “2. Persons falling under points (a) and (b) of Article 3(2) of Directive 2004/38/EC whose residence was facilitated by the host State in accordance with its national legislation before the end of the transition period in accordance with Article 3(2) of that Directive shall retain their right of residence in the host State in accordance with this Part, provided that they continue to reside in the host State thereafter.” and “3.Paragraph 2 shall also apply to persons falling under points (a) and (b) of Article 3(2) of Directive 2004/38/EC who have applied for facilitation of entry and residence before the end of the transition period, and whose residence is being facilitated by the host State in accordance with its national legislation thereafter.”
Article 10.3, Article 10.2 applies to persons falling under points (a) and (b) of Article 3(2) of the Directive, provided they “have applied for facilitation of entry and residence before the end of the transition period, and whose residence is being facilitated by the host State in accordance with its national legislation thereafter”.
The reference to “national legislation” reflects the fact that the arrangements for other family members are primarily regulated by domestic law.

The EUSS and Family members:

The EUSS was introduced on 30 March 2019. It enables EU, other EEA and Swiss citizens resident in the United Kingdom by the end of the transition period, and their family members, to obtain the necessary immigration status in order to reside lawfully in the United Kingdom, following the United Kingdom’s exit from the EU.

From the formal introduction of the EUSS on 30 March 2019 until 31 December 2020, EEA citizens and their family members could apply either under the 2016 Regulations or under the EUSS.

Having regard to Article 10 of the Withdrawal Agreement, in order to fall within the scope of Part 2 (and, thus, Article 18) a person asserting to be an other family member must have “applied for facilitation of entry and residence before the end of the transition period”.

Appendix EU (FP) applies to persons residing outside the United Kingdom. It contains the conditions for the grant of either:

an EUSS family permit to join a relevant EEA citizen or a qualifying British citizen in the United Kingdom or to accompany them to the United Kingdom; or
an EUSS Travel Permit.

FP6(1) and (2) contain the eligibility requirements for entry clearance to be granted in the form of an EUSS family permit.

Background to the appeals:

The relevant EU national was Persida Sultan, a Romanian national. She was married to Zahoor Sultan who was, the paternal uncle of all four of the appellants; accordingly Persida Sultan was their aunt by marriage.

The first and second appellants were sister and brother, aged 17 and 10 at the date of the application. Their father was Chaudhary Ghulam Shabbir.

The third and fourth appellants were brothers, aged respectively 13 and 10 at the date of the application. Their father was Muhammed Amir Chaudhry.

On 3 February 2020 the appellants made their applications to the Respondent. The applications were made under the EUSS by reference to Appendix EU (Family Permit) to the Immigration Rules (“Appendix EU (FP)”). At that time, the appellants were living in Pakistan with their 2 grandparents.

The grandparents(as dependant direct relatives in the ascending line) entered the United Kingdom on 17 July 2020 having been granted their EUSS family permits. They were granted limited leave to remain under Appendix EU on 23 September 2020 (grandfather) and 2 October 2020 (grandmother). After the grandparents travelled to the United Kingdom, the appellants were left living with a woman from their village who was employed to look after them.

On 21 December 2020, Zahoor Sultan took the grandparents back to Pakistan.

Basis of refusal – Appellants were not family members for the purposes of the EUSS:

The Appellants’ applications were refused by the Respondent on 20 February 2020 on the basis that none of them met the eligibility requirements for an EUSS family permit. This was because, unlike the grandparents, the appellants were not family members of Persida Sultan for the purposes of the EUSS.

The Appellants appealed against that decision, pursuant to regulation 3 of the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 (“the 2020 Appeals Regulations”).

The Appellant’s arguments in the Upper Tribunal:

The Appellants’ appeal having been dismissed by the First Tier Tribunal, it was contended on their behalf in the Upper Tribunal that:

As a matter of domestic law, the appellants did, in fact, fall within the scope of the expression “family member of a relevant EEA citizen” in Appendix EU (FP). Those immigration rules fall to be interpreted in the light of the Withdrawal Agreement.
The appellants contended that other family members who have applied for a residence card or immigration document fall within the scope of the Withdrawal Agreement; specifically, Article 10(3). Pursuant to Article 10(5) they are accordingly entitled to be issued with a residence document.
It was argued that Article 18 of the Withdrawal Agreement requires the United Kingdom to issue residence documents to family members and “other persons”, that expression being a shorthand for extended family members and those in a durable relationship.
the concession made by the representative of the appellants before the First-tier Tribunal Judge was wrong. The appellants are family members of a relevant sponsor. This is because they are the nieces/nephews of the sponsor’s husband who have been and continue to be financially dependent on the sponsor/husband and who have been and continue to be a member of the sponsor/husband’s household in Pakistan.
Given that the appellants applied for entry clearance before 31 December 2020 and their application was decided after that date, they continued to be beneficiaries under Article 10 of the Withdrawal Agreement. Furthermore, and in any event, the appellants had made a valid application which should have been treated by the respondent as an application under the 2016 Regulations.
Regarding Article 8 of the ECHR, it was submitted that the First-tier Tribunal was required to “go on to decide the merits of the appeal, on invitation, in accordance with Article 7 and 24 of the Charter of the Fundamental Rights of the EU (“the EU Charter”) and then if necessary go on to consider Article 8 ECHR and section 55” of the Borders, Citizenship and Immigration Act 2009 (best interests of child).
Alternatively, the appellants submitted that their “underlying case was a human rights claim”, the refusal of which was appealable: section 82(1) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”); Baihinga (r.22; human rights appeal: requirements) [2018] UKUT 00090 (IAC); [2018] Imm AR 930.
nothing in the 2002 Act or the 2020 Appeal Regulations precluded them from making a human rights claim or having it decided by the First-tier Tribunal under section 82(1)(b) of the 2002 Act. In any event, Article 8 of the ECHR can be raised as a ground of appeal at first instance, as it was relevant to the substance of the decision. It was not a “new matter”. Even if it was such a matter, the presenting officer before the First-tier Tribunal Judge consented to Article 8 being considered.
where an individual has made an application which also consists of “an underlying Article 8 ECHR claim” and this has been considered by the Respondent, then it is not a “new matter” and the First-tier Tribunal must therefore consider the merits of it, without requiring the consent of the Secretary of State.

The Upper Tribunal’s considerations and conclusions:

No breach of the Appellants’ rights under the Withdrawal Agreement- Respondent’s decisions were in accordance with Appendix EU (FP):

Although the Appellants were permitted to withdraw the concession made on their behalf in the First-tier Tribunal, it was considered plain from the analysis of the relevant provisions that, notwithstanding the submissions now made on their behalf, the Appellants simply did not fall within the terms of Appendix EU (FP). Those immigration rules give effect to the Withdrawal Agreement and the appellants are not family members within the scope of Article 18.1 of the Withdrawal Agreement.
Faced with this difficulty, it was noted the Appellants contended that the application they made on 3 February 2020 under Appendix EU (FP) was an application “for facilitation of entry and residence” for the purposes of Article 10.3 of the Withdrawal Agreement. The Upper Tribunal however considered that it was plain that Article 10.3 encompasses those who apply for entry or residence as other family members. The expression “facilitation” in the context of the preceding phrase “persons falling under points (a) and (b) of Article 3(2) of Directive 2004/38/EC” puts that beyond doubt. The appellants’ applications were not made on the basis that the Secretary of State should exercise discretion in their favour, as part of her obligations as identified by the CJEU in The application material made it crystal clear what the basis of the applications was. The appellants applied on the basis that they were family members.
If the Appellants had applied under the 2016 Regulations as extended family members, then the effect of the transitional provisions would have been such as to require the Respondent to reach a decision, even after 31 December 2020, on whether their residence should be “facilitated”. In the event of a negative decision, a right of appeal would have lain to the First- tier Tribunal. As a result of a concession by the Secretary of State, now contained in immigration rules, a decision in the appellants’ favour would have led to the grant of leave, rather than the provision of EU (EEA) residence documentation (which is no longer available).
The appellants did not apply for facilitation of entry and residence.
The Upper Tribunal noted the Appellants’ argument in the alternative that, notwithstanding they applied under EUSS rather than under the 2016 Regulations, the Respondent ought to have treated their applications as being made under those Regulations: The Upper Tribunal however concluded that the guidance on http://www.gov.uk, however, showed that the Secretary of State had been at pains to provide potential applicants with the relevant information, in a simple form, including highlighting the crucial distinction between “close family members” and “extended family members”. That was a distinction which, as seen from the Directive and the case law, is enshrined in EU law. It is not a novel consequence of the United Kingdom’s leaving the EU. It was, accordingly, not possible to invoke sub-paragraphs (e) and (f) of Article 18 as authority for the proposition that the Respondent should have treated one kind of application as an entirely different kind of application.
It could not be disproportionate for the Respondent and the Secretary of State, faced with the scale of EUSS applications, to devise and operate a system which draws attention to the two fundamentally different ways in which a family application should be made, and which then determines applications by reference to what an applicant is specifically asking to be given.
The upshot was that the Appellants could not show their rights under the Withdrawal Agreement were breached by the Respondent’s decisions. The Appellants could not show that those decisions were not in accordance with Appendix EU (FP). Accordingly, the First-tier Tribunal could not allow their appeals by reference to Regulation 8 of the 2020 Appeal Regulations.

The Tribunal had no jurisdiction in an appeal governed by the 2020 Appeal Regulations to consider a “human rights” ground in this appeal:

The Appellants contended that the First-tier Tribunal Judge had a duty to consider their human rights and that this was not capable of being a “new matter” requiring the Secretary of State’s consent.

It was submitted that, where an appellant has made an application for residence pursuant to Article 18 of the Withdrawal Agreement, and the application contains a human rights claim which is refused, then the appellant may appeal on human rights grounds/grounds based on the EU Charter; and that this matter must be considered by the First-tier Tribunal.

It was contended that, if the Appellant did not satisfy the EUSS, then the First-tier Tribunal in an appeal under the 2020 Appeal Regulations “must go on to decide the merits of the appeal, on invitation, in accordance with Articles 7 and 24 of the Charter of Fundamental Rights of the EU and then if necessary go on to consider Article 8 ECHR and section 55”. If the view is taken that the situation is not covered by European Union law, then the First-tier Tribunal “must undertake that examination in the light of Article 8(1) of the ECHR”.

The Upper Tribunal concluded:

The first task was to decide whether the First-tier Tribunal has jurisdiction in an appeal governed by the 2020 Appeal Regulations to consider a “human rights” ground. This involves an analysis of regulation 9 of the 2020 Appeal Regulations.
Regulation 9(4) provides that the first-tier Tribunal has power to consider any matter which it thinks relevant to the substance of the decision. Here, however, the First-tier Tribunal can do so only with the consent of the Secretary of State, if the matter is a “new matter” as defined in regulation 9(6). This provides that the matter will be a “new matter” if it constitutes a ground of appeal of a kind listed in regulation 8 or section 84 and the Secretary of State has not previously considered the matter in the context of the decision appealed against under the Regulations or in the context of a section 120 statement from the appellant.
The “jurisdiction” issue under regulation 9(4) in the context of Article 8 ECHR was addressed by the Upper Tribunal in Celik (EU exit, marriage, human rights) [2022] UKUT 220 (IAC) (19 July 2022). In essence, the Upper Tribunal found that the First-tier Tribunal has jurisdiction under regulation 9(4) to consider a human rights ground on an appeal against refusal of an application under the EUSS, provided that, if it is a “new matter”, the Secretary of State consents. Unless the Secretary of State has previously considered the Article 8 ECHR issue in the context of the decision appealed against or in a section 120 statement, the Secretary of State’s consent will be necessary in order for the First-tier Tribunal to consider the Article 8 issue. In order to succeed in an application for entry clearance under Appendix EU(FP), an applicant must meet the specific requirements of those rules. Since neither Appendix EU nor Appendix EU(FP) is intended to, and does not, give effect to the UK’s obligations under Article 8 ECHR, consideration of Article 8 forms no part of the decision-making process in relation to such an application. Regardless of the strength of any Article 8 claim, leave could not be granted under those provisions unless the requirements of the relevant rules were satisfied.
The application materials in the appeals did not refer to human rights matters. They were, in no sense, a human rights claim within the meaning of section 113(1) of the 2002 Act. The decisions refusing the Appellants’ applications made no reference to human rights. The decisions could in no way be regarded as refusals of human rights claims within the meaning of section 82(1)(b) of that 2002 Act.
the EU Charter had no bearing on the appeals. The EU Charter ceased to be part of the United Kingdom’s law on 31 December 2020: section 5(4) of the European Union (Withdrawal) Act 2018. The “saving” in section 5(5) merely concerns fundamental rights or principles which exist irrespective of the EU Charter. Since Article 7 of the EU Charter corresponds to Article 8 ECHR, the effect of section 5(5) is to put beyond doubt that Article 8 ECHR continues to apply after 31 December 2020.
Article 24 of the EU Charter concerns the rights of the child. Article 24.1 was irrelevant in the present context. Article 24.2, which requires a child’s best interests to be a primary consideration in all actions relating to children, broadly corresponds with section 55 of the Borders, Citizenship and Immigration Act 2009, insofar as the Respondent is concerned. The Appellants however, failed to explain how the Respondent’s decisions under EUSS (FP) could conceivably have been different, merely because the appellants were children; still less how section 55 can be a material factor in an appeal brought under the 2020 Appeal Regulations.
The submission that retained EU law is such as to require the Respondent and the First-tier Tribunal to determine the Article 8 rights of the appellants in the context of an appeal under the 2020 Appeal Regulations was noted as was the Appellants’ reliance upon Dereci and Others v Bundesministerium f ür Inneres [2012] 1 CMLR 45; [2012] Imm AR 230 (“Dereci”) at paragraph 72.
The Upper Tribunal stated they were in no doubt that Dereci does not have the effect for which the appellants contend, even if it somehow remains part of United Kingdom law for the purposes with which they were concerned. If the position were otherwise, Schedule 2 (appeals to the First-tier Tribunal) to the 2016 Regulations would have been framed so as to include, as a ground of appeal, that the decision under those Regulations was a violation of Article 8 of the ECHR.
The judgment of the Court of Appeal in Amirteymour v SSHD [2017] EWCA Civ 353; [2017] Imm AR 1368 made the Appellants’ case untenable. There, the Court held that human rights could not constitute a ground of appeal under the 2006 Regulations (the predecessors of the 2016 Regulations), unless it had featured in a response to a section 120 notice (the “new matter” provisions not having come into being at that time).
The position, therefore, was that, unless there has been a section 120 response raising human rights, the First-tier Tribunal may entertain a submission that leave should be granted in order to avoid a breach of section 6 of the Human Rights Act 1998, only with the consent of the Secretary of State if this would involve consideration of a “new matter”.
Since the Respondent’s decision making under Appendix EU (F P) is not concerned with human rights issues, the raising of a human rights claim will always be a “new matter” unless, for some reason, the Secretary of State has already considered it.
For the reasons he gave, the First-tier Tribunal Judge was entitled to conclude, on the evidence, that the decisions refusing entry clearance were “entirely compatible with respect for their family and private life to which the appellants are entitled by Article 8 of the ECHR”.

Conclusion

Despite spirited efforts, the Appellants in Batool could not show the First-tier Tribunal’s decision in dismissing their appeal involved the making of an error on a point of law. Their appeals were therefore dismissed.

As the applicants were nephews/nieces of the EU Sponsor( and her husband who was their paternal uncle), their applications of 3 February 2020 should instead have been made at that time under the 2016 Regulations as other/extended family members rather than under the EUSS.

Once the four applications for family permits were refused on 20 February 2020 their entire cases should have been reviewed so as to properly identity the applicable law as to eligibility and the relevant application method to utilise. An appeal should not have been lodged in response to the refusal decisions- rather new family permit applications under the 2016 Regulations should have been made by 31 December 2020 to thereafter enable issue of appropriate residence documentation.

By the time the appeals were heard by the Upper Tribunal, two years after the refusal decisions, the odds were heavily stacked against the Appellants having regard to the provisions of law which had come into effect. Hence the Upper Tribunal’s conclusions in Batool as per its Headnote:

“(1) An extended (oka other) family member whose entry and residence was not being facilitated by the United Kingdom before 11pm GMT on 31 December 2020 and who had not applied for facilitation of entry and residence before that time, cannot rely upon the Withdrawal Agreement or the immigration rules in order to succeed in an appeal under the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020.

(2) Such a person has no right to have any application they have made for settlement as a family member treated as an application for facilitation and residence as an extended/other family member”.

Unfortunately, the principles and legal effect arising in Batool applies to other extended family members such as brothers, sisters, uncles and aunts who failed to apply for a family permit by 31 December 2020 under the 2016 Regulations. As in Batool, they are unable now to rely upon the EUSS and neither can they rely upon the 2016 Regulations as these provisions have been revoked.

Celik (EU exit, marriage, human rights) [2022] UKUT 220 (IAC) (19 July 2022) is of similar effect in relation to an individual who had been in a cohabitating relationship with an EU national since February 2020 but had failed to marry by 31 December 2020 nor in the alternative, relevant to current similar circumstances, submitted an application as an extended family member(durable partner) by that date. Celik concluded as follows in dismissing that Appellant’s appeal:

“48.The appellant is not a family member to whom Part 2 of the Withdrawal Agreement applies. He was not a person who, in the words of Article 10.1(e)(i), resided in the United Kingdom in accordance with Union law before 11pm on 31 December 2020 and who continues to reside here afterwards. Nor does he fall within the scope of Article 10.1(e)(ii) or (iii).

52.There can be no doubt that the appellant’s residence in the United Kingdom was not facilitated by the respondent before 11pm on 31 December 2020. It was not enough that the appellant may, by that time, have been in a durable relationship with the person whom he married in 2021. Unlike spouses of EU citizens, extended family members enjoyed no right, as such, of residence under the EU free movement legislation. The rights of extended family members arose only upon their residence being facilitated by the respondent, as evidenced by the issue of a residence permit, registration certificate or a residence card: regulation 7(3) and regulation 7(5) of the 2016 Regulations.

53.If the appellant had applied for facilitation of entry and residence before the end of the transition period, Article 10.3 would have brought him within the scope of that Article, provided that such residence was being facilitated by the respondent “in accordance with … national legislation thereafter”. This is not, however, the position. For an application to have been validly made in this regard, it needed to have been made in accordance with regulation 21 of the 2016 Regulations. That required an application to be submitted online, using the relevant pages of http://www.gov.uk, by post or in person, using the relevant application form specified by the respondent; and accompanied by the applicable fee.

54.After 30 June 2021, a favourable decision of the respondent by reference to a pre-31 December 2020 application, results in a grant of leave under the EUSS, rather than a grant of residence documentation under the 2016 Regulations

55.As we have seen, the appellant made no such application.

56.The above analysis is destructive of the appellant’s ability to rely on the substance of Article 18.1. He has no right to call upon the respondent to provide him with a document evidencing his “new residence status” arising from the Withdrawal Agreement because that Agreement gives him no such status. He is not within the terms of Article 10 and so cannot show that he is a family member for the purposes of Article 18 or some other person residing in the United Kingdom in accordance with the conditions set out in Title II of Part 2.

57.The appellant’s attempt to rely on his 2021 marriage to an EU citizen is misconceived. EU rights of free movement ended at 11pm on 31 December 2020, so far as the United Kingdom and the present EU Member States are concerned. The Withdrawal Agreement identifies large and important classes of persons whose positions in the host State are protected, following the end of the transition period. The appellant, however, does not fall within any such class.

64.In the present case, there was no dispute as to the relevant facts. The appellant’s residence as a durable partner was not facilitated by the respondent before the end of the transitional period. He did not apply for such facilitation before the end of that period. As a result, and to reiterate, he could not bring himself within the substance of Article 18.1.”

Zambrano EUSS Primary Carers “New” Guidance: Akinsanya and Velaj

Posted on June 27, 2022 by alicemuzira Standard Reply

“The Home Secretary has carefully considered the Court of Appeal judgment and has decided that she no longer wishes that definition in Appendix EU to reflect the scope of the 2016 Regulations (which have now been revoked) but wishes it to reflect the scope of those who, by the end of the transition period, had an EU law right to reside in the UK as a Zambrano primary carer, in line with the originally stated policy intention. She therefore intends to maintain the requirement in sub-paragraph (b) of the definition that the applicant did not, by the end of the transition period and during the relevant period relied upon, have leave to enter or remain in the UK (unless this was under the EUSS).

This means applications will be considered under the existing Immigration Rules for the EUSS in Appendix EU. Applicants will be eligible for EUSS status in this category where, by the end of the transition period and during the relevant period relied upon, they met the relevant requirements of regulation 16 of the 2016 Regulations and did not have leave to enter or remain in the UK (unless this was under the EUSS).

From today, for a period of six weeks until 25 July 2022, people will be able to apply or re-apply to the EUSS as a ‘person with a Zambrano right to reside’ and be deemed to have reasonable grounds for having missed the deadline to apply, which was 30 June 2021.

Where a person applies after 25 July 2022, they will need to show there are reasonable grounds why they missed the 30 June 2021 deadline. You can find non-exhaustive examples of such grounds at www.gov.uk/settled-status-eu-citizens-families/eligibility”.

Following the Court of Appeal’s judgment in the case of R(Akinsanya) v Secretary of State for the Home Department [2022] EWCA Civ 37, [2022] 2 WLR 681, the Home Office have now reconsidered the EU Settlement Scheme (EUSS) requirements for applicants relying on being a Zambrano primary carer and published their Guidance as above on 13 June 2022.

Akinsanya was previously considered in previous blog posts:

Akinsanya litigation: Court of Appeals decides Zambrano Primary Carers of British citizen children with limited leave are covered by the EEA Regulations – UK Immigration Justice Watch Blog

Primary Carers of British citizens: The Akinsanya litigation and persons with a Zambrano right to reside – UK Immigration Justice Watch Blog

Two weeks prior to publication of the “new” Guidance, the judgement of the Court of Appeal in Velaj v Secretary of State for the Home Department [2022] EWCA Civ 767 (31 May 2022) was notified.

The judgement is considered here: https://ukimmigrationjusticewatch.com/2022/06/27/court-of-appeal-and-reg-165c-akinsanya-does-not-address-question-whether-the-british-citizen-dependant-would-be-unable-to-reside-in-the-uk/

In Velaj, the Court was clear that in Akinsanya, that Appellant’s case on Regulation 16 was entirely focused upon Regulation 16(7). Regulation 16(7) defines an “exempt person” for the purposes of Regulation 16(1)(a). The categories of exempt persons include British Citizens, and persons with Indefinite Leave to Remain (“ILR”). Akinsanya contended that persons with limited leave are not exempt persons and by virtue of paragraph 1(b) are entitled to a derivative right to reside, alongside their leave to remain.

Whether Ms Akinsanya could satisfy the criteria in Regulation 16(5) if she had leave to remain under some other provision of domestic law did not directly arise, and it was not something which the Court considered on her appeal.

As per paragraph 65 of Velaj:

“In Akinsanya this court was not required to consider, and did not consider, the requirements of Regulation 16(5) and how 16(5)(c) might be satisfied in practice by a primary carer who had limited leave to remain. The only issue it had to determine was whether Regulation 16(7) acted as a threshold barrier precluding someone like Ms Akinsanya from asserting that she had a derivative right of residence under Regulation 16(5) (or its predecessor) which had survived the subsequent grant to her of limited leave to remain”.

The Court in Velaj therefore in essence sought to interpret the phrases contained in Regulation 16(5)(c):

“unable to reside in the United Kingdom”
“If the person left the United Kingdom for an indefinite period”

The reasoning in Velaj requires consideration that even if Ms Akinsanya was able to convince the Court of Appeal that she was not an exempt person and so entitled to a derivative right to reside alongside her leave to remain, the question would still remain: assumptions aside and holding leave to remain under the Rules, whether in practice, her British citizen child would be unable to remain in the UK, or an EEA Member State or Switzerland, if she was in fact required to leave the UK for an indefinite period.

The Home Office would have been aware of the effect of Velaj when formulating their Guidance.

As matters stand, does the Secretary of State’s position as reflected in the Guidance of 13 June 2022 mean:

Individuals with leave to remain who applied as a ‘person with a Zambrano right to reside’ from June 2021 onwards are bound to have their applications refused?
There is no point applying as a ‘person with a Zambrano right to reside’ for those with leave to remain but yet to do so?

In light of the “new” Guidance, a person with leave to remain applying as a “person with a Zambrano right to reside” would face difficulty having regard to the Home Office’s main Guidance on Zambrano EUSS Carers:

“Initial eligibility requirements

To be considered eligible for indefinite leave to enter or remain or limited leave to enter or remain under Appendix EU as a ‘person with a Zambrano right to reside’ (or, as the case may be, in relying on past residence as such a person before moving into – and since remaining in – any, or any combination, of the other categories to which the definition of a ‘person who had a derivative or Zambrano right to reside’ refers), the applicant both:

must not be and for the relevant period have not been (or, as the case may be, for the relevant period they were not) an ‘exempt person’ under regulation 16(1)(a) of the EEA Regulations
must not have and for the relevant period must not have had (or, as the case may be, for the relevant period they did not have) leave to enter or remain in the UK granted, unless this was granted under Appendix EU

……………..

Leave to enter or remain in the UK, other than leave granted under Appendix EU

A Zambrano right to reside is only available to a person who has no other lawful basis of stay in the UK as the primary carer of a dependent British citizen, or as a dependant of that primary carer. In the case of Akinsanya v the Secretary of State for the Home Department (SSHD) [2022] EWCA Civ 37 (25 January 2022), the Court of Appeal found that, as a matter of EU law, a Zambrano right to reside does not arise where a person holds leave to remain, but that regulation 16(7) of the EEA Regulations did not exclude holders of limited leave to remain.

…………

To qualify as a ‘person with a Zambrano right to reside’ under Annex 1 to Appendix EU, the applicant must meet the requirements of that definition by the specified date (normally, 2300 GMT on 31 December 2020) and for the relevant period relied upon. This means in particular that they must not have held leave to enter or remain in the UK under another part of the Immigration Rules, or outside the Rules, at the specified date or for that period.

If the applicant does (or for the relevant period did) have leave to enter or remain in the UK, other than leave granted under Appendix EU, then you must, based on the information available to you, consider their eligibility for leave under the other eligibility requirements in rule EU11 (and, where relevant, EU12) and EU14 of Appendix EU, see: EU Settlement Scheme: EU, other EEA and Swiss citizens and their family members.

If they do not meet any other eligibility requirements for leave under the scheme, then you must refuse the application under rule EU6, without going on to consider the other eligibility stages in this guidance”.

Affected individuals whose leave to remain was due to expire prior to receiving decisions on their outstanding Zambrano EUSS application would most likely have timely applied for further leave to remain. Those who are yet to do so, should seriously consider doing so.

Court of Appeal and Reg 16(5)(c): Akinsanya does not address question whether the British Citizen dependant would be unable to reside in the UK

Posted on June 27, 2022 by alicemuzira Standard Reply

The correct interpretation of Regulation 16(5)(c) of the Immigration (European Economic Area) Regulations 2016 (“the 2016 Regulations”), was in issue in Velaj v Secretary of State for the Home Department [2022] EWCA Civ 767 (31 May 2022)

The two judgements of the Court of Appeal in Velaj and R(Akinsanya) v Secretary of State for the Home Department [2022] EWCA Civ 37, [2022] 2 WLR 681 address different issues.

Relevantly, Regulation 16(5)(c), with which Velaj was concerned with, requires regard to be had to whether the relevant dependant British citizen would be unable to reside in the United Kingdom or in another EEA State if the primary carer left the United Kingdom for an indefinite period.

As per paragraph 65 of Velaj:

The Court in Valej therefore in essence sought to interpret the phrases contained in Regulation 16(5)(c):

“unable to reside in the United Kingdom”
“If the person left the United Kingdom for an indefinite period”

Summary Background:

The Appellant, a Kosovan national, subject to deportation proceedings under s.32(5) of the UK Borders Act 2007, had his appeal allowed by the First Tier Tribunal(FTT) on the basis his British son would be unable to reside in the UK or another EEA state if both his parents( the child’s British mother with whom the Appellant was in a relationship with) left the UK for an indefinite period and consequently the Appellant had a derivative right of residence under Regulation 16(5).

On the Secretary of State’s appeal, the Upper Tribunal set aside the decision of the FTT for a material error of law. Having concluded that the Appellant did not have a derivative right of residence, the Upper Tribunal re-made the decision on his appeal against the refusal of his human rights claim, accepted that Mrs Velaj would not go to live in Kosovo and found that it would not be reasonable to expect her to do so. The Upper Tribunal concluded that, although the effects of the Appellant’s deportation would be harsh on the family and indeed distressing, given the gravity of the Appellant’s offending it was nonetheless proportionate. The Appellant’s appeal was dismissed in the Upper Tribunal.

Provisions in issue:

Regulation 16 provides that a person has a derivative right to reside during any period in which the person is not an exempt person and satisfies each of the criteria in one or more of paragraphs (2) to (6).

Relevantly, Regulation 16(5) sets out that the criteria in the paragraph are that –

(a) the person is the primary carer of a British Citizen (“BC”)

(b) BC is residing in the United Kingdom; and

(c) BC would be unable to reside in the United Kingdom or in another EEA State if the person left the United Kingdom for an indefinite period

In Regulation 16(8), a person is the “primary carer” of another person (“AP”) if-

(a) the person is a direct relative or a legal guardian of AP and (b) either –

(i) the person has primary responsibility for AP’s care; or

(ii) shares equally the responsibility for AP’s care with one other person

Regulation 16(5) is concerned with the rights established by the decision of the Grand Chamber of the Court of Justice of the European Union (“CJEU”) in Ruiz Zambrano Ruiz Zambrano v Office national de l’emploi (Case C-34/09) [2012] QB 265, (“Zambrano”) as subsequently re-stated and developed in Chavez-Vilchez v Raad van Bestuur van de Sociale Verzekeringsbank (Case C-133/15) [2018] QB 103 (“Chavez-Vilchez“).

As per Regulation 16(9), “In paragraph … 5(c), if the role of primary carer is shared with another person in accordance with paragraph 8(b)(ii) the words “the person” are to be read as “both primary carers.”

Regulation 16(7) defines an “exempt person” for the purposes of Regulation 16(1)(a). The categories of exempt persons include British Citizens, and persons with Indefinite Leave to Remain (“ILR”).

Regulation 16(12) provides that a derivative right to reside will not arise where decisions are made to remove or exclude the primary carer on grounds of public policy, public security or public health or misuse of rights.

The 2016 Regulations ceased to have effect, save for certain transitional purposes, on 31 December 2020.

Relevant caselaw:

The principles arising in the following caselaw( CJEU and domestic), were considered by the Court in Velaj:

Ruiz Zambrano v Office national de l’emploi(Case C-34/09) [2012] QB 265, (“Zambrano”) :- Zambrano concerned a family living in Belgium: the parents were third country nationals of Colombia. Two of their children were Belgian citizens, and therefore citizens of the EU by virtue of Art 20 of the TFEU. The CJEU held that Art 20 of the TFEU precludes national measures which have the effect of depriving EU citizens of the genuine enjoyment of the substance of the rights conferred upon them by virtue of their status as EU citizens. Unless the father, who was the family breadwinner, enjoyed the right to live and work in Belgium, he and his wife would have to leave the EU, and the children would in practice have to leave with their parents, which would deprive them of the substance of their rights as EU citizens under Articles 20 and 21.
Chavez-Vilchez v Raad van Bestuur van de Sociale Verzekeringsbank (Case C-133/15) [2018] QB 103(“Chavez-Vilchez“):- Chavez-Vilchez concerned EU citizen children who were living with their third country national mothers in the Netherlands. The fathers, from whom the mothers were separated, were Dutch nationals, who provided the children with varying degrees of support. The Dutch authorities had held that the mothers were not entitled to Zambrano rights (including certain state benefits) unless they could show that the fathers were unable to care for the children. The CJEU held that this approach was too simplistic. The fact that the other parent, who was an EU citizen, was willing to assume sole responsibility for the primary care of the EU citizen child was a relevant factor, but it was not sufficient, in and of itself, to conclude that there was not such a degree of dependency between the child and the third country national parent that the child would be compelled to leave the EU if that parent were denied a right of residence. In deciding whether the child would be compelled to leave, account had to be taken of all the specific circumstances, including the age of the child, their physical and emotional development, their emotional ties to each parent and the risks to the child’s well-being that separation from the third country national parent would entail.
Patel v Secretary of State for the Home Department[2020] 1 WLR 228 :- the Court described the reasoning underpinning the Zambrano jurisprudence at [22]: “What lies at the heart of the Zambrano jurisprudence is the requirement that the Union citizen would be compelled to leave Union territory if the TCN [third country national], with whom the Union citizen has a relationship of dependency, is removed.” Lady Arden also observed at [30] that: “The test of compulsion is … a practical test to be applied to the actual facts and not to a theoretical set of facts.”
R(Akinsanya) v Secretary of State for the Home Department[2022] EWCA Civ 37, [2022] 2 WLR 681, (“Akinsanya”) :- The claimant in Akinsanya was a national of Nigeria who was the sole primary carer for a British Citizen child. She was initially issued with a 5 year residence card as a Zambrano carer, but she was subsequently granted 30 months’ leave to remain in the UK under Appendix FM to the Immigration Rules. She then made an application for ILR under the EU Settlement Scheme (“EUSS”). She contended that she met the criteria for ILR set out in Appendix EU to the Immigration Rules because she was a person who had a Zambrano right to reside and she had completed the requisite continuous qualifying period of five years. The Secretary of State argued that Ms Akinsanya did not qualify under the EUSS because Annex 1 to Appendix EU defined “a person with a Zambrano right to reside” as excluding persons who had leave to enter or remain in the UK unless it had been granted under Appendix EU itself. It was contended on Mrs Akinsanya’s behalf that the definition in limb (b) of Annex 1 to Appendix EU did not properly reflect the Zambrano jurisprudence (Ground 1) and/or it did not properly reflect the language of Regulation 16 of the 2016 Regulations (Ground 2). It was argued that there was nothing in Regulation 16 which precluded someone with limited leave to enter or remain in the UK from acquiring (or keeping) derivative rights under that Regulation.As per Underhill LJ in Akinsanya at paragraphs 33 to 36 the issue, was whether the Secretary of State had, in formulating the Annex 1 definition, erred in her understanding of (a) the Zambrano jurisprudence and (b) Regulation 16 of the EEA Regulations, by proceeding on the basis that a Zambrano right did not arise in circumstances where the carer had any form of leave to enter or remain. If the Secretary of State was wrong about that, it was agreed that the impugned decision would have to be quashed.The Court in Akinsanya found for the Secretary of State on the first issue. After analysing the Zambrano jurisprudence, including Iida v Stadt Ulm (Case C-40/11) [2011] Fam 121 and Secretary of State for the Home Department v A (Case C-115/15) [2017] QB 109, Underhill LJ concluded that as a matter of EU law, a Zambrano right is a right of last resort which does not arise if the third-country national carer otherwise enjoys a right under domestic law to reside in the member state in question.However, the conclusion that the definition in Annex 1 to Appendix EU did accurately reflect the Zambrano jurisprudence was not the end of the matter. As Underhill LJ explained at paragraph 57 in Akinsanya, it was unclear whether in framing that definition the Secretary of State intended to restrict rights under the EUSS to people whose rights to reside at the relevant dates directly depended on Zambrano, or whether her intention was to extend those rights to “all those carers whose removal would result in an EU citizen dependant having to leave the UK”. The Court could not, and was not required to, explore the Secretary of State’s purpose in framing the definition because it accepted Ms Akinsanya’s case on the construction of Regulation 16.

The issue in Velaj:

In Velaj, the appeal concerned the correct interpretation of Regulation 16(5)(c) of the 2016 Regulations which defines the circumstances in which a third country national who is the primary carer of a British Citizen has a derivative right to reside in the UK.

The issue which arose in the appeal was whether a person deciding whether the requirements of Regulation 16(5)(c) are fulfilled must consider whether the British Citizen dependant would be unable to reside in the UK on the assumption that the primary carer (or both primary carers, as the case may be) will leave the UK for an indefinite period (irrespective of whether the assumption is correct); or whether the decision-maker must consider what the impact on the British Citizen would be if in fact the primary carer (or both primary carers) would leave the UK for an indefinite period.

The Court of Appeal considered that it was common ground that the Appellant would not qualify for a Zambrano right under the European jurisprudence because as a matter of fact, his son would not be compelled to leave the EU if he were denied a derivative right of residence. He would be able to stay in the UK with his British Citizen mother, who shared primary caring responsibilities with his father and who would not leave the UK if he were returned to Kosovo. It was also common ground that until the amendments were made by the 2018 Regulations, Mr Velaj would not have qualified as a “primary carer” because his wife, being a British Citizen, was an exempt person.

The Appellant’s case turned on the proposition that, on the true construction of Regulation 16(5) of the 2016 Regulations, he acquired rights under domestic law which go further than the minimum rights guaranteed to Zambrano carers under EU law.

Court of Appeal’s considerations and conclusions on the issues:

The Court of Appeal’s considerations included the following:

It was not accepted that Regulation 16(5)(c), as modified by Regulation 16(8) and (9), admits of only one interpretation.
The focus is on whether the British Citizen dependant would be “unable” to remain in the UK “if” something happens – i.e. on what will happen to the child if the primary carer leaves (or both primary carers leave). In that context the word “if” requires the decision maker to consider the position of the child on the basis that something is (actually) going to happen. It does not require that premise to be purely hypothetical, let alone counterfactual. Given that the person asking themselves the question has to decide what in practice would happen to the child if that event occurred, it would make little sense to require them to make an assumption that the event will happen if it plainly will not.
“If the person left the UK for an indefinite period” could either mean “in the event that the person [in fact] left the UK for an indefinite period” or “on the hypothesis that the person will leave the UK for an indefinite period (regardless of whether in fact he would do so)”. The former seemed to the Court to be the more natural interpretation, and carried with it the necessary implication that the postulated event (here, leaving the UK) is realistic, and not just theoretical. A purely hypothetical event could have no impact, in practice, on the ability of the child or other British Citizen dependant to remain in the UK.
It is clear from Chavez-Vilchez and Patel that the question whether the dependant EU citizen would be “unable to reside in the UK” depends on a fact-specific inquiry. It requires a nuanced analysis of inability, and not a simple analysis of a hypothetical question, and that must mean that the decision-maker is looking at what is likely to happen in reality. The “key issue of inability to reside in the United Kingdom requires detailed consideration and a causal link with the departure of both carers”.
That interpretation is also consistent with the stated intention to give effect to Zambrano rights, whereas the rival interpretation would confer a new species of purely domestic derivative rights on someone who would never meet the Zambrano test (or the test in Chen or Ibrahim or Teixeira), in circumstances where the departure of that person from the UK would in practice have no effect at all upon the ability of the British Citizen dependant to remain in the UK. The question whether the legislator is likely to have intended this consequence admits of only one answer in the present case, and that is no.
Requiring the decision maker to assume that both primary carers will leave the UK when one of them will undoubtedly stay behind also precludes the type of nuanced inquiry that was envisaged in Chavez-Vilchez.
Assuming that “required to leave” is given a wider meaning than “legally compelled” in line with Zambrano itself that means “in the event that P will be forced to leave the UK”. The decision-maker is looking at the likely impact upon the child of the primary carer being forced by law or by economic pressure to leave the UK. It presupposes that on the facts of the specific case, this is a realistic hypothesis.
In the Court’s judgment there was nothing in the decision in Akinsanya which precluded the Court in Valej from adopting that construction of Regulation 16(5)(c).

The ratio in Akinsanya- understanding what the case was about:

Velaj is clear:

“59.It is important to understand what that case was. It is set out at [59] of the judgment in Akinsanya:

“the claimant’s case is that limb (b) of the Annex 1 definition is inconsistent with the definition of “exempt person” in regulation 16 (7). Head (iv) of that definition covers a person “who has indefinite leave to enter or remain in the United Kingdom”; but it says nothing about persons with only limited leave. The claimant contends that persons with limited leave are accordingly not exempt persons and by virtue of paragraph 1(b) are entitled to a derivative right to reside, alongside their leave to remain, so long as they satisfy the criteria under one of paragraphs (2)–(6).” [Emphasis added].

60.Thus Ms Akinsanya’s case on Regulation 16 was entirely focused upon Regulation 16(7). She accepted that if she was not exempt, her entitlement to a derivative right to reside would depend on her being able to satisfy the criteria in Regulation 16(5). However the question whether she could or could not do so if she had leave to remain under some other provision of domestic law did not directly arise, and it was not something which this Court considered on her appeal”.

In Velaj, the Court observed that Ms Akinsanya had already satisfied those criteria and obtained her derivative rights of residence as a Zambrano carer before she was granted limited leave to remain. She met the requirements of Regulation 16(5)(c) or its predecessor, Regulation 15A(4A), at the time when she was granted her derivative right of residence. The only question in her case would be whether the grant of limited leave to remain somehow superseded her Zambrano right or meant that she was no longer entitled to it – she was contending that it did not because the two rights could co-exist. It was common ground that if she won on either of her grounds of appeal, the impugned decision to refuse her claim under the EUSS (on the basis that she did not qualify) would have to be reconsidered by the Secretary of State.

As Underhill LJ pointed out at paragraph 60 in Akinsanya, the claimant’s case was clearly right on any natural reading of Regulation 16(7), and it also reflected the understanding of the Home Office at the time when the Amendment Regulations, which introduced the concept of “exempt persons” were made. Guidance issued to UK Border Agency staff in 2012 stated that: “where someone has limited leave (and so is not listed as one of the exempt categories above) and can demonstrate that they meet all other requirements of regulation 15A, then they can acquire a derivative right of residence.”

The focus of the argument thereafter was on whether Regulation 16(7) should be given a construction that was different from its ordinary and natural meaning.

The Court in Velaj set out what the ratio was in Akinsanya:

“64.Whilst accepting the likelihood that in making the relevant parts of Regulation 16 the SSHD intended, in a broad sense, to do no more than to implement the minimum requirements of Zambrano, Underhill LJ said that this begged further questions. The SSHD may have misunderstood what those requirements were, since Iida and A had not been decided when the Amendment Regulations were made in 2012. Alternatively,

“it may be that the Secretary of State took the view that allowing a Zambrano right to reside to those who already had limited leave to remain was more straightforward than having to consider whether particular forms of leave to remain, and in particular the conditions about working to which they might be subject, were fully consistent with Zambrano rights.”

In the end, however, he said that the short answer was that the language of Regulation 16(7)(c)(iv) [which referred specifically to persons with ILR] was simply too clear to allow it to be construed as covering persons with limited leave to remain. That was the ratio of the decision in Akinsanya”.

Velaj emphasises;

“65.In Akinsanya this court was not required to consider, and did not consider, the requirements of Regulation 16(5) and how 16(5)(c) might be satisfied in practice by a primary carer who had limited leave to remain. The only issue it had to determine was whether Regulation 16(7) acted as a threshold barrier precluding someone like Ms Akinsanya from asserting that she had a derivative right of residence under Regulation 16(5) (or its predecessor) which had survived the subsequent grant to her of limited leave to remain.

66.The Court in Akinsanya did not have the benefit of hearing the arguments that were advanced in the present case. Those arguments would have had no bearing on the point of construction of Regulation 16(7) which determined the outcome.…

67.Mr Cox submitted that the criteria for the grant of the derivative right could not be met by a sole primary carer with limited leave to remain if the words “if the person left the UK for an indefinite period” in Regulation 16(5)(c) were not construed in the manner for which he contended, i.e. as a purely hypothetical premise. If a carer already had limited leave to remain they would not, in fact, leave the UK for an indefinite period and the child would not be compelled to leave with them.

68.Although I see the force of that argument, the immigration status of a person with limited leave to remain is precarious; leave is likely to be subject to conditions and it is liable to be withdrawn or truncated. It is possible to conceive of situations in which the conditions attached to a limited leave to remain are such as to make it impossible in practice for the primary carer to remain in the UK and look after the child.

69.I can also envisage a Zambrano carer whose limited leave to remain is due to expire making an application under Regulation 16(5)(c) and succeeding on the basis that they would have to leave the UK as soon as their limited leave expired and the child would have to go with them. In such a case if the decision-maker asks “what will happen to the child in the event that the primary carer leaves the UK for an indefinite period?” they will not be positing a completely unrealistic scenario. In any event, the practical difficulties of someone with limited leave to remain being able to satisfy the requirements of Regulation 16(5)(c) would not be a justification for construing those requirements in a manner which was clearly unintended.

71.Accordingly there is nothing in the decision in Akinsanya that precludes Regulation 16(5)(c) from being construed as I consider it should be construed”.

The appeal in Velaj was dismissed.

Conclusion

The interpretation of Regulation 16(5)(c) in Velaj enabled the Court to reach the conclusion that the appeal could not succeed.

The Court however did not undertake a detailed consideration as to how on the facts the particular appeal failed. Their analysis and conclusions on Regulation 16(5)(c) are however enough to enable a reader to grasp not only that the Appellant failed to meet the requirements of Regulation 16(5)(c) but:

rejected by the Court were submissions on behalf of the Appellant that the decision-maker must determine whether the British citizen would be unable to reside in the UK on the purely hypothetical premise that their primary carer (or both primary carers) will leave the UK for an indefinite period

The Court’s view was that focus is on whether the British Citizen dependant would be “unable” to remain in the UK “if” something happens – i.e. on what will happen to the child if the primary carer leaves (or both primary carers leave). In that context the word “if” requires the decision maker to consider the position of the child on the basis that something is (actually) going to happen. It does not require that premise to be purely hypothetical, let alone counterfactual. The Court stated that given that the person asking themselves the question has to decide what in practice would happen to the child if that event occurred, it would make little sense to require them to make an assumption that the event will happen if it plainly will not.

Ultimately, the assessment of whether the British citizen would be unable to reside in the UK, the EEA if the applicant were required to leave the UK for an indefinite period requires a fact-based enquiry looking at whether, in practice, the British citizen would be unable to remain in the UK, or an EEA Member State or Switzerland, if the applicant (or, as the case may be, both primary carers) were in fact required to leave the UK for an indefinite period. There is no need to make assumptions.

Refused EUSS application: non-EU spouse of EEA national wins appeal against Home Office unproven allegations of marriage of convenience

Posted on April 29, 2022 by alicemuzira Standard Reply

Not only did this Appellant win her appeal in 2015 but did so for a second time in April 2022, successfully countering the Secretary of State’s further unproven allegations that her marriage to an EEA national was one of convenience.

The Appellant, CZ, contended that as a spouse, she had made a valid application under Appendix EU of the Immigration Rules and was eligible for indefinite leave to remain as a family member of a relevant European Economic Area (EEA) citizen and satisfied one of the conditions of Rule EU11 of Appendix EU.

Relevant provisions of Appendix EU:

Annex A Definitions of Appendix EU, provides the definition of civil partnership of convenience, durable partnership of convenience, marriage of convenience as entered into as a means to circumvent:

any criterion the party would have to meet in order to enjoy a right to enter or reside in the UK under the EEA Regulations; or
any other provision of UK immigration law or any requirement of the Immigration Rules; or
any criterion the party would otherwise have to meet in order to enjoy a right to enter or reside in the UK under EU law; or
any criterion the party would have to meet in order to enjoy a right to enter or reside in the Islands under Islands law

The definition of spouse does not include a marriage of convenience.

What seemed to count against the Appellant:

The odds seemed stacked against CZ:

She disclosed during a marriage interview, that due to disagreements with the EEA sponsor, there had been several periods of separation during the 5year period she held a residence card between 2015 and 2020
Whilst living elsewhere, she conceived and bore a child with another man after a one-off encounter
Having reconciled with the EEA national following the birth of the child, and upon seeking to apply for indefinite leave to remain under Appendix EU, along with the Sponsor she was subjected to a marriage interview by the Home Office at the end of 2020
A total of 390 questions were asked during the interview. The Interviewing Officer sought in 2020 to dig up and revisit matters which a previous Tribunal Judge had in 2015 decided did not go towards proving a marriage of convenience
Relying on alleged inconsistencies arising out of the marriage interview, the Secretary of State’s position, as per the refusal decision was that the Appellant’s marriage was one of convenience.

Summary arguments for the Appellant:

I represented CZ and amongst other issues, submitted during the appeal hearing that:

the discrepancies relied on by Home Office were peripheral at best and had been fully addressed by the Appellant and the EEA Sponsor in their witness statements.
Devaseelan, STARRED Secretary of State for the Home Department v D (Tamil) [2002] UKIAT 00702, applied to the Tribunal’s previous decision.
The Secretary of State had not discharged the burden of proof- Sadovska & Anor v Secretary of State for the Home Department (Scotland) (Rev 1) [2017] UKSC 54
There was ample evidence to show that the marriage was genuine and subsisting and that the couple were living together and had been for over 5 years.
The appeal should be allowed

Reliance was placed upon the following line of cases:

Why the Tribunal Judge found the marriage was not one of convenience:

The Judge expressed that it was not easy to understand the basis of the Secretary of State’s decision in the appeal, reasoning and concluding as follows:

There were no divorce proceedings, and none were planned.
The EEA Sponsor’s presence in the United Kingdom as a qualified person was enough, even if the couple were no longer living together.
The genuine nature of the marriage had been upheld in a determination promulgated in 2015 and as submitted, Devaseelan applied.
There was no basis for seeking to reopen the genuine nature of the marriage. Whether the marriage was in trouble (having been found genuine) was not relevant to the fact of over 5 years’ residence and the continued presence in the United Kingdom of both parties.
the evidence showed that the Appellant and her EEA Sponsor reconciled after a period of difficulty and from that it may safely be inferred that their marriage had been strengthened. Both gave full and exceptionally frank evidence, which the Tribunal accepted as true without hesitation. Their evidence was consistent with their answers at interview.
The Tribunal was satisfied that the marriage was genuine and subsisting. It was not a marriage of convenience and never has been.
The Appellant met the conditions of Regulation EU11.3(a)(ii), (b) and (c).

The Tribunal Judge concluded that the Appellant’s appeal succeeded, and she was entitled to Indefinite Leave to Remain under Appendix EU.

Primary Carers of British citizens: The Akinsanya litigation and persons with a Zambrano right to reside

Posted on June 28, 2021 by alicemuzira Standard Reply

“It’s is now time for the Home Office to remove the offending parts in Guidance Derivative rights of residence. The Guidance appears misleading and results, as intended, in a discouragement of or an unlawful bar on entitled would- be applicants from relying upon the EEA Regulations”, so concluded a blog post of nearly one and half years ago- Automatic/Blanket Zambrano refusals: FTT Judge finds amended Zambrano Guidance an inaccurate reflection of the 2016 EEA Regulations | UK Immigration Justice Watch Blog

Following Akinsanya, R (On the Application Of) v Secretary of State for the Home Department (Rev 3) [2021] EWHC 1535 (Admin), that is what the Secretary of State may well have to do, ie amend or publish new Guidance affecting those with a Zambrano right to reside.

Zambrano and Appendix EU

As is widely known, since 1 May 2019, a ‘person with a Zambrano right to reside’ has been able to apply for settled status (indefinite leave to enter or remain in the UK) or pre-settled status (limited leave to enter or remain in the UK) under the EU Settlement Scheme.

In the case of Zambrano, the CJEU found that a European Union (EU) Member State cannot refuse a person the right to reside in that State, where to do so would deprive their dependent EU citizen children (who reside and are nationals of that State) of genuine enjoyment of the substance of their EU citizenship rights by forcing them to leave the European Economic Area (EEA).

The primary carer of a British citizen will have a derivative right to reside in the UK based on Zambrano if both the following apply:

the British citizen is also residing in the UK
the British citizen would be unable to reside in the UK or in an EEA Member State or Switzerland, if the primary carer left the UK for an indefinite period

The conditions to be satisfied for a derivative right to reside based on Zambrano are set out in regulation 16(5) of the 2016 EEA Regulations.

Appendix EU refers partly to the relevant provisions of the EEA Regulations when defining a ‘person with a Zambrano right to reside’. Therefore, the applicant will be a ‘person with a Zambrano right to reside’ under Appendix EU where, they are resident for a continuous qualifying period in the UK with a derivative right to reside by virtue of regulation 16(1) of the EEA Regulations, satisfying several criteria.

The Akinsanya litigation

The case of Akinsanya, R (On the Application Of) v Secretary of State for the Home Department (Rev 3) [2021] EWHC 1535 (Admin) (09 June 2021), concerned the decision of the Secretary of State on 29 September 2020 refusing Ms Akinsanya’s application under the EU Settlement Scheme (“EUSS”) as a ‘person with a Zambrano right to reside‘.

Deliberately calculated amendments to the Regulations and Guidance:

The Court made references to the following:

Regulation 15A of the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003) was noted to have been impeccably drafted and accurately reflected the true legal scope of the decision in Zambrano, namely that holding indefinite leave to remain in the UK, and nothing but such indefinite leave, would automatically debar an application from being made for a Zambranoderivative right of residence under Regulation 15A. Regulation 15A, as well as the Guidance issued at that time accurately stated that a person with limited leave would be entitled to apply for a Zambrano derivative right of residence. For this reason such a person was not designated as “exempt”.
The Immigration (European Economic Area) Regulations 2016 (SI 2016/1052) replaced the 2006 Regulations. When making the 2016 Regulations the Secretary of State decided to maintain in Regulation 16(7)(c)(iv) only indefinite leave as the criterion for an exempt person; there was no hint that at that point she considered that the definition of exempt person should be expanded to catch all those with limited leave to remain.
On 7 March 2019 Secretary of State promulgated the EUSS. She laid before Parliament on that same day the Immigration (European Economic Area Nationals) (EU Exit) Regulations (SI 2019/468), which came into force three weeks later on 28 March 2019. These made amendments to the 2016 Regulations. Specifically, a new Regulation 16(7A) was added which stated: “(7A) Leave to enter, or remain in, the United Kingdom under the 1971 Act which has been granted by virtue of Appendix EU to the immigration rules is not to be treated as leave for the purposes of paragraph (6)(b) or (7)(c)(iv)”. Therefore, on 7 March 2019 the Secretary of State modified the definition of an exempt person to exclude someone who has been granted leave to remain in the UK under the EUSS. It was noted by the Court that the Secretary of State modified the definition of leave to allow someone granted leave under the EUSS nonetheless to apply for a Zambrano derivative right to reside, yet she chose not to modify any other aspect of the regime governing leave
Paragraph (b) in Annex 1 of Appendix EU to the Immigration Rules was promulgated on 7 March 2019 and defined a person with a Zambrano right to reside as a: “a person who has satisfied the Secretary of State, including (where applicable) by the required evidence of family relationship, that, by the specified date, they are (and for the relevant period have been), or (as the case may be) for the relevant period in which they rely on having been a person with a Zambrano right to reside (before they then became a person who had a derivative or Zambrano right to reside) they were:
…. (b) without leave to enter or remain in the UK, unless this was granted under this Appendix
On 2 May 2019, the Secretary of State issued Guidance documents under challenge namely “Free Movement Rights: derivative rights of residence” (version 5.0). This stated that people with limited leave to remain could not apply for a Zambranoderivative right to reside and provided that: “A derivative right to reside is only available to an applicant who has no other means to remain lawfully in the UK as the primary carer of a dependent British citizen, or a dependent of that primary carer.…Where a person wishes to remain in the UK on the basis of family life with a British citizen, they should first make an application for leave to remain under Appendix FM to the Immigration Rules, not for a derivative residence card on the basis of Zambrano.…This means that a Zambrano application must be refused if the applicant: has never made an application under Appendix FM to the Immigration Rules or any other Article 8 ECHR claim, where that avenue is available; has been refused under Appendix FM or Article 8 ECHR but their circumstances have changed since the decision was made – for example, the applicant applied on the basis of their relationship with a British spouse, but the couple now have a British child.” The Court stated that it was it troubling, to say the least, that this instruction should have been issued requiring staff to ignore the clear terms of the 2016 Regulations, and therefore to act unlawfully.
Home Office Guidance, “EU Settlement Scheme: person with a Zambranoright to reside” (version 4.0 of 27 April 2021) states: “A Zambrano right to reside is only available to a person who has no other means to remain lawfully in the UK as the primary carer of a dependent British citizen, or as a dependant of that primary carer. As set out in sub-paragraph (b) of the definition of a ‘person with a Zambrano right to reside’ in Annex 1 to Appendix EU, an applicant cannot meet that definition if they have (or, as the case may be, for the relevant period had) leave to enter or remain in the UK, unless this was granted under Appendix EU. An applicant cannot therefore meet that definition if they have (or, as the case may be, for the relevant period had) leave to enter or remain granted under another part of the Immigration Rules (such as Appendix FM) or on a discretionary basis outside the Rules”.

How the litigation arose

It was established that Ms Akinsanya, a sole carer of a British citizen child was granted 30 months limited leave to remain under Appendix FM until 11 January 2022, with no condition preventing recourse to public funds. Her subsequent application of 29 January 2020, under the EU Settlement Scheme for indefinite leave to remain under Appendix EU of the Immigration Rules, on the basis that she was a Zambrano carer with five years’ continuous residence was refused by the Secretary of State in September 2020. The Secretary of State decided that the claimant was not eligible for the EUSS because she had already been granted limited leave to remain, and so was barred by paragraph (b) of the definition of ‘person with a Zambrano right to reside’ in Appendix EU.

Ms Akisanya sought an order in the Administrative Court quashing the decision made by the Secretary of State on 29 September 2020 refusing her application under the EU Settlement Scheme (“EUSS”) as a ‘person with a Zambrano right to reside‘. She also sought other declaratory and quashing relief.

The question the Court had to decide, was whether the right to reside was automatically extinguished if there was, at the time that it is claimed, a concurrent limited leave to remain.

The Secretary of State’s position was that the true meaning of Zambrano is that any national award of limited leave to remain acts to thwart an application for a Zambrano derivative right to reside.

A win in the Administrative Court

In allowing the Claimant’s application for judicial review, the Court concluded:

The Zambrano principle is simple and clear. An EU citizen, who happens to be a small child, is entitled to enjoy the full benefits of EU citizenship, of which the principal one is living in EU territory. If her primary carer were to be expelled from EU territory, and if in the real world the EU citizen would have to accompany the carer, then the EU citizen is denied the benefits of her citizenship. Therefore, her carer has to be granted residence in the relevant EU state.
In the Court’s judgement, a proper analysis of the EU cases clearly demonstrates that the court did not consider a limited leave to remain under national law to be a Zambranoextinguishing factor
Nothing decided in the CJEU or domestically since the decision in Zambranosupports the theory that the existence of a concurrent limited leave to remain of itself automatically extinguishes a claim for Zambrano On the contrary, it is clear from the facts of Zambrano itself that the CJEU tacitly acknowledged that a limited national leave to remain, and a wider Zambrano right to remain, in many cases can and will coexist.
The Secretary of State erred in law when she formulated paragraph (b).

In relation to issues raised as regards amendment of the 2016 EEA Regulations, the following came under consideration:

It was noted that the argument advanced on behalf of the Secretary of State was that the Court should construe the 2016 Regulations so that they conform with what she maintains to be the true scope of the Zambrano The Court indicated that it had already rejected the Secretary of State’s argument that the true scope of the Zambrano jurisprudence does not extend to people with limited leave to remain.
If the natural meaning of the words in the domestic measure appears to grant its users an uncovenanted bonus then the corrective remedy lies in the hands of the rule makers and Parliament, and not in the hands of the judges.
Even if the Court was wrong about the juridical scope of the Zambrano decision, its judgment nonetheless was that neither a textual nor a contextual construction of Regulation 16 can yield a meaning which so radically reduces its reach. It would amount to judicial amendment not interpretation.
What was being suggested was to add words( i.e limited leave) to a domestic statutory instrument which have the effect of stripping away rights from what may be a substantial cohort of applicants.
It was the Court’s judgment that, irrespective of the true scope of the Zambrano jurisprudence, the natural, fair, reasonable and plain meaning of the words of Regulation 16 entitle an applicant under the 2016 Regulations for a derivative right to reside to have the application determined by reference to the prescribed eligibility criteria in that Regulation rather than being struck out peremptorily. The existing words in Regulation 16 are clear and the proposed amendments go well outside the permissible range of meaning of those words.

Why the Secretary of State has not yet made the amendments to the Regulations herself

In Akinsanya, the Court asked why the Secretary of State was asking the Court to do her amending for her: if the Secretary of State was so anxious that persons with limited leave to remain should also be designated as exempt persons, it would be the easiest thing for the 2016 Regulations to be amended again.

The Court was informed by those representing the Secretary of State that this would not be straightforward as the 2016 Regulations had in fact been revoked by the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 Sch.1(1) para.2(2) with effect from 31 December 2020, but the revocation has effect subject to savings specified in two statutory instruments made pursuant to that Act.

The Court noted in summary, that the effect of the savings is to allow people in the position of the claimant whose rights had vested prior to implementation day on 31 December 2020 to make their claim, however, it was apparently, not straightforward to make amendments to these preserved provisions.

Declarations by the Court and a quashing order

The Court made the following declarations:

The Secretary of State erred in law when providing, in Annex 1 to Appendix EU to the Statement of Changes to the Immigration Rules HC 395 as amended, that the definition of a “person with a Zambrano right to reside” includes paragraph (b) “a person …. without leave to enter or remain in the UK, unless this was granted under this Appendix.”
The Guidance issued by the Secretary of State (1) “Free Movement Rights: derivative rights of residence” (version 5.0 of 2 May 2019) and (2) “EU Settlement Scheme: person with a Zambrano right to reside” (version 4.0 of 27 April 2021) is legally erroneous insofar as it states that a person who has limited leave to enter or remain in the UK cannot also have a derivative right to reside by virtue of regulation 16(1) of the Immigration (European Economic Area) Regulations 2016, by satisfying the criteria in regulation 16(5) of those Regulations.

The Secretary of State’s decision of 29 September 2020 refusing the Claimant’s indefinite leave to remain under Appendix EU of the Immigration Rules was quashed.

Developments: The Consent Order of 17 June 2021

The Claimant’s application for further relief was adjourned to 17 June 2021.

Appended to the Akinsanya judgement published on 9 June 2021, is a Consent Order dated 17 June 2021.

The Consent Order provides as follows, amongst other matters:

a.The Secretary of State is to reconsider the relevant provisions of Appendix EU of the Immigration Rules (“Appendix EU”);

b.The Secretary of State will not determine applications made under Appendix EU on the basis that the applicant is or was a person with a Zambrano right to reside (‘Zambrano application’) and is affected by the Court’s judgment, until after she has completed her reconsideration of Appendix EU;

c.In paragraph (a)(v) of the definition of ‘required date’ in Annex 1 to Appendix EU the reference to “limited leave to enter or remain granted under another part of these Rules or outside the Immigration Rules which has not lapsed or been cancelled, curtailed or invalidated” includes leave to enter or remain granted under another part of these Rules or outside the Immigration Rules which is extended by operation of section 3C of the Immigration Act 1971;

d.To the extent that paragraph 34BB of the Immigration Rules applies to a Zambrano application, it will be disregarded where there is (i) an outstanding valid Zambrano application for leave to remain under Appendix EU and a valid application for leave to remain is subsequently made under Appendix FM based on the same circumstances; and (ii) an outstanding valid application for leave to remain under Appendix FM and a valid Zambrano application for leave to remain is subsequently made under Appendix EU based on the same circumstances as the Appendix FM application;

e.The Secretary of State intends to implement and publicise a policy under which, for a reasonable period of time which she will specify, but which will be for a period of not less than six weeks after publication of the outcome of her reconsideration referred to at a. above, Zambrano applications made on or after 1 July 2021 will be deemed, under the definition of ‘required date’ in Annex 1 to Appendix EU, to have reasonable grounds for the person’s failure to make that application at the earlier date relevant under that definition;

f.In accordance with paragraph (c) of the definition of “EEA Regulations” in Annex 1 of Appendix EU, the question of whether an applicant is a person with a Zambrano right to reside as defined in Appendix EU in respect of a period on or after 1 July 2021 is to be determined on the basis of the Immigration (European Economic Area) Regulations 2016 as they had effect immediately before they were revoked, and, where the context requires it, on the basis that they had not been revoked;

g.Where a valid Zambrano application is made on or before 30 June 2021, the Secretary of State provides the applicant with a certificate of application confirming their entitlement to work, study and rent a place to live, until final determination of their Zambrano application;

h.The Secretary of State is considering the position in relation to the issue of similar certificates for applications made under Appendix EU on or after 1 July 2021, including in relation to Zambrano applications;

i.Before expiry of the period referred to in e., above, where persons are encountered by Immigration Enforcement on or after 1 July 2021 who may be eligible for leave as potential Zambrano applicants under Appendix EU in light of the judgment, such persons will be provided with written notice giving them an opportunity to make a valid application under Appendix EU, normally within 28 days of the date of the written notice.

**In relation to further information as to the effect of the Consent Order and other helpful clarifications as well as a further point of reference in relation to the Akinsanya litigation, the information provided by Hackney Community Law Centre is of assistance: www.hclc.org.uk/2021/06/zambrano-carers-and-the-euss-scheme-what-you-need-to-know/

Conclusion

What the Secretary of State has since 2019 been hard at work on, i.e a deliberate thwarting of would-be Zambrano applicants, has been stalled. Whatever the outcome of the pending litigation in the Court of Appeal, for now at least, the Secretary of State should accept that the Akinsanya litigation has opened the door wide open for applications from hundreds or even thousands of Zambrano primary carers of British citizens- not only from those with limited leave to remain, but applicants without any leave, including third country primary carers subject to deportation.

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UK Immigration Justice Watch Blog

'Unlike my brother judge here, who is concerned with Law, I am concerned with Justice' Lord Denning

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