Adekunle Oluwaseun Osunneye v Secretary of State for the Home Department

By a decision promulgated on 16 December 2022, the Upper Tribunal (myself and Deputy Upper Tribunal Judge Malik KC) found there to be an error of law in the decision of First-tier Tribunal Judge N M Paul dismissing the Appellant’s appeal against a decision made by the Respondent on 22 September 2020, refusing his application for a derivative residence card as the primary carer of a British Citizen child. The Tribunal gave directions for the re-making of the decision in this Tribunal. A copy of the Tribunal’s decision is appended hereto for ease of reference.

The appeal came back before me on 31 January 2023 for re-making. On that occasion, the Respondent raised a new issue relating to the Tribunal’s jurisdiction to determine the appeal. A supplementary skeleton argument was submitted by the Respondent in which she sought to argue that the Tribunal no longer had jurisdiction to decide the appeal as regulation 16 of the Immigration (European Economic Area) Regulations 2016 (“the EEA Regulations”) had not survived the revocation of the EEA Regulations after 31 December 2020. An issue was also raised about the Respondent’s preparedness for the hearing as the Respondent had not had sight of the Appellant’s bundle before the First-tier Tribunal.

The Appellant then as now appeared in person. I was conscious that it would be unfair for me to dismiss his appeal for want of jurisdiction without giving him the opportunity to take advice on or be given time to consider the issue. I was also told by Mr Melvin who appeared for the Respondent on that occasion that the issue of jurisdiction was to be determined in another case by a Presidential panel shortly after the hearing. He sought an adjournment so that I could consider the issue with the benefit of a decision following full argument on that issue. I agreed to the adjournment not simply for that reason but also because the Respondent did not have all the necessary documents from the Appellant in order to proceed. I gave directions for the Appellant to serve those documents and gave the Respondent the opportunity to apply for a further adjournment in the event that the decision of the Presidential panel to which he had referred had not been promulgated prior to the hearing before me (if that decision was still thought to be relevant).

The resumed hearing of the appeal was relisted before me on Friday 21 April 2023. On Thursday 13 April 2023, the Respondent sought a further adjournment. She did so on the basis that the decision of the Presidential panel had recently been promulgated but not yet reported. She wished to rely on that decision but considered that it would be unfair for the Appellant to have to deal with it without further time. The decision in question is Secretary of State for the Home Department v Oluwayemisi Janet James (UI-2021-000631; EA/05622/2020) (“James”). In James, the Tribunal concluded that it did not have jurisdiction to re-determine Ms James’ appeal in not dissimilar circumstances to the current appeal.

I issued a Note on 14 April 2023 informing the Appellant of the decision in James (and appending it) and inviting him to consider whether he wished to seek an adjournment of the hearing on 21 April or whether he wished to proceed. I indicated that I would be content to adjourn if he wished to make that application but equally that, if the Respondent were correct, an adjournment would “simply prolong matters to no benefit” which would ultimately be a waste of the Appellant’s time and money.

As it was, the Appellant did not seek an adjournment. Instead, he submitted a supplementary skeleton argument advancing his position that in James the Tribunal did not conclude that it had no jurisdiction; alternatively, the decision was contrary to decisions in other (unreported) cases, and/or was wrong in law.

At the outset of the hearing before me, I indicated to the parties that, unless they raised an objection, I intended to determine the jurisdiction issue on the basis of the parties’ positions as set out in their supplementary skeleton arguments together with my own reading of James (and as appropriate the unreported decisions to which the Appellant referred) and the relevant legislative provisions. Both parties were content to proceed in that way in relation to the jurisdiction issue.

I also indicated that since the Appellant and his partner (JD) were both in court, it would be appropriate to hear their evidence and hear submissions as to the substance of the appeal so that, if I concluded that I had jurisdiction to determine the appeal, I could go on to do so or, if I concluded that I did not, I could still make observations about the facts of the case. Those might still be relevant as I was informed in the course of the hearing that the Appellant had also made an application under the EU Settlement Scheme (“EUSS”) which had been refused but was the subject of an appeal in the First-tier Tribunal which was presently stayed.

In addition to the oral evidence which I heard from the Appellant and [JD], I also had a number of documents filed by the Appellant to which I refer as necessary (they are not in a paginated bundle).

Having heard evidence from the Appellant and [JD] and submissions from both parties, I indicated that I would reserve my decision and provide that in writing which I now turn to do.

Before turning to the jurisdiction issue, it is necessary to set out the factual background to the Appellant’s case as certain facts are relevant to the jurisdiction issue.

The Appellant entered the UK as a student on 3 October 2009. His leave in that capacity was extended to 16 October 2013. Thereafter, he overstayed.

Having made two applications for a residence card in 2013 and 2014 both of which were refused, and which led to appeals which the Appellant withdrew, on 20 June 2016, the Appellant applied for leave based on his family life. He was granted leave to remain until 21 April 2019.

On 5 April 2019, the Appellant sought further leave as an unmarried partner (I assume of [JD]). That was granted until 19 November 2021.

On 5 October 2019, the Appellant made an application for status under the EUSS. That was refused on 11 June 2020 which decision was upheld following administrative review on 3 July 2020.

On 30 June 2020, the Appellant made the application under the EEA Regulations which led to the decision under appeal made on 22 September 2020.

On 16 June 2021, the Appellant made an application under the EUSS which was refused. An appeal hearing in November 2021 was adjourned and that appeal remains stayed.

The Appellant’s application under the EEA Regulations is premised mainly on his relationship with his child [P] who has behavioural problems. [P] was born in January 2016 and is therefore currently aged seven years. The Appellant claims a “Zambrano” derivative right to reside as he says that if he returned to Nigeria, [JD] and their children, in particular [P] would have to leave with him. [P] is a British citizen. [JD] is also a British citizen as is his other child born in May 2017. [JD] has a further child born in April 2012. The Appellant and [JD] now have a further young baby.

The Respondent’s decision under appeal refused the application under the EEA Regulations on the basis that there was insufficient evidence to show that [P] lives with the Appellant, that the Appellant makes decisions in relation to his welfare or that the Appellant is financially responsible for him. The Respondent did not accept that [P] would have to leave the UK if the Appellant were not granted a derivative right of residence as he could remain with his mother ([JD]) who could continue to care for him. It was pointed out that the Appellant could make an application to remain under Appendix FM to the Immigration Rules based on his family life. The Respondent noted that the Appellant previously had leave to remain on that basis so that it was likely that such an application could succeed (in fact it appears that the Appellant still had such leave at the date of the refusal letter). It was therefore not accepted that [P] would be required to leave the UK.

The EEA Regulations were revoked on 31 December 2020 which coincided with “IP completion day” in relation to the UK’s withdrawal from the European Union. However, some provisions of the EEA Regulations were retained for certain transitional purposes thereafter.

The provisions of the EEA Regulations which are relevant to my consideration are regulation 16 (which deals with the requirements for a derivative right to reside), regulation 20 (which sets out the circumstances in which the Respondent must issue a derivative residence card and which is therefore aligned with regulation 16) and regulation 36 (which sets out the rights of appeal against an adverse decision – of particular relevance here is regulation 36(5)).

As the Tribunal pointed out at [11] of the decision in James, the provisions of EU law which cease to apply after the UK’s withdrawal from the EU include those entitling individuals to rely on a “Zambrano” derivative right to reside.

The EEA Regulations are continued for transitional purposes by statutory instruments including the Immigration and Social Security Coordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020 (SI 1309/2020) (“the 2020 Regulations”). Both parties in this appeal agree that those are the relevant regulations. However, the parties disagree as to the effect of those regulations.

At [12] to [13] of the decision in James, the Tribunal concluded that the effect of the 2020 Regulations is that regulations 16 and 20 no longer apply to a determination of an appeal after 31 December 2020. That is because those provisions are not amongst those listed in paragraph 6 of Schedule 3 to the 2020 Regulations (“Schedule 3”). Paragraph 5 of Schedule 3 which is headed “Existing appeal rights and appeals” provides broadly that only those provisions which are included in paragraph 6 of Schedule 3 continue to apply. I will need to come back to that provision.

The Respondent sought permission to rely on the decision in James even though it remains unreported. I give permission to do so. As a decision of the President and Vice-President of this Tribunal it is of course highly persuasive. I do however note that the Tribunal did not have the benefit of full argument on this issue as Ms James was in person.

The Appellant also sought permission to rely on certain unreported decisions of this Tribunal. For the sake of completeness, I set out the titles of those cases:

None of those cases has any relevance to this appeal for the following reasons. They are all concerned with appeals against refusals of status under the EUSS and not derivative rights under the EEA Regulations. The transitional arrangements which apply in those cases are different. The Siddiqa case concerned an entry clearance decision in relation to an extended family member and has nothing to do with Zambrano carers. The other two cases were both concerned with the application of the judgment in R (oao Akinsanya) v Secretary of State for the Home Department [2022] EWCA Civ 37 which, as I pointed out at [9] of my error of law decision has no bearing in an appeal against a refusal under the EEA Regulations since it was concerned with the provisions of the EUSS. Two of the cases were error of law decisions only. Further and in any event, the jurisdiction issue was not raised or decided in any of those cases. As such, they have no bearing on my decision.

I therefore return to the 2020 Regulations since those are the applicable transitional arrangements. Schedule 3 to the 2020 Regulations provides for savings in connection with the EEA Regulations. Paragraph 1 states that, in Schedule 3, references to the EEA Regulations are to those regulations “as they had effect immediately before they were revoked” “unless provided otherwise”.

Paragraph 3 of Schedule 3 provides for savings in relation to “pending applications for documentation under the EEA Regulations”. Paragraph 3(6) continues regulation 20 of the EEA Regulations “for the purposes of considering and, where appropriate, granting an application for a derivative residence card which was validly made in accordance with the EEA Regulations 2016 before commencement day”. That does not apply in this case as the Respondent had already considered and refused the Appellant’s application before that date. However, this provision indicates that it remains open to the Respondent to issue a derivative residence card even after the revocation of the EEA Regulations.

Paragraph 4 of Schedule 3 thereafter provides that the provisions of the EEA Regulations specified in paragraph 6 continue to apply despite the revocation of the EEA Regulations with the modifications there set out in order to determine whether an application as referred to in paragraph 3 should be granted.

Paragraph 5 of Schedule 3 is headed “Existing appeal rights and appeals” and is therefore particularly important for my purposes. Paragraph 5(1) is of some importance and so I set it out so far as relevant to the issue which here arises:

“Existing appeal rights and appeals

5.

—(1) Subject to sub-paragraph (4), the provisions of the EEA Regulations 2016 specified in paragraph 6 continue to apply—

(a)

to any appeal which has been brought under the Immigration (European Economic Area) Regulations 2006 and has not been finally determined before commencement day,

(b)

to any appeal which has been brought under the EEA Regulations 2016 and has not been finally determined before commencement day,

(c)

in respect of an EEA decision, within the meaning of the EEA Regulations 2016, taken before commencement day, or

(d)

in respect of an EEA decision, within the meaning of the EEA Regulations 2016 as they continue in effect by virtue of these Regulations or the Citizens' Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020, which is taken on or after commencement day.

Paragraph 6 of Schedule 3 then sets out the specified provisions of the EEA Regulations 2016. As the Tribunal pointed out in James, neither regulation 16 nor 20 of the EEA Regulations are included in that schedule. Regulation 36 relating to appeal rights is. It appears that the Tribunal was not addressed about the relevance of that. It is particularly important because schedule 2 to the EEA Regulations is also amongst the provisions continued as modified. At paragraph 6(cc), the modifications to that schedule are set out as follows:

“(aa) in relation to an appeal within paragraph 5(1)(a) to (c), in each of paragraphs 1 and 2(4), the words ‘under the EU Treaties’, in so far as they relate to things done on or after exit day but before commencement day, were a reference to the EU Treaties so far as they were applicable to and in the United Kingdom by virtue of Part 4 of the EU withdrawal agreement;

(bb) in relation to an appeal within paragraph 5(1)(d), in each of paragraphs 1 and 2(4), the words ‘under the EU Treaties’, were a reference to ‘under the Immigration (European Economic Area) Regulations 2016 as they are continued in effect by these Regulations or the Citizens’ Rights (Restrictions of Rights of Entry and Residence) (EU Exit) Regulations 2020, or by virtue of the EU withdrawal agreement…”

Those provisions are of importance as they draw a distinction between appeals which arise before or are against decisions taken before 31 December 2020 (paragraphs 5(1)(a) to (c)) and those against decisions taken after 31 December 2020 (paragraph 5(1)(d)).

That these provisions have relevance is confirmed by the Respondent’s supplementary skeleton argument in this case. That points out that regulations 16 and 20 are not preserved under paragraph 6 of Schedule 3 but also accepts that regulation 36 is saved unmodified and schedule 2 to the EEA Regulations is also saved but as modified. Unfortunately, when setting out how the modifications apply (to the wording of section 84 Nationality, Immigration and Asylum Act 2002 - “Section 84” -as incorporated by schedule 2 to the EEA Regulations) the Respondent has referred to the amended wording as applies to an appeal under paragraph 5(1)(d) of Schedule 3 and not to an appeal under paragraph 5(1)(c) of Schedule 3 (as is this appeal).

Applying paragraph 6(cc)(aa) of Schedule 3 to the wording of schedule 2 to the EEA Regulations and Section 84 produces the following result:

“SCHEDULE 2

APPEALS TO THE FIRST-TIER TRIBUNAL

1.

The following provisions of, or made under, the 2002 Act have effect in relation to an appeal under these Regulations to the First-tier Tribunal as if it were an appeal against a decision of the Secretary of State under section 82(1) of the 2002 Act (right of appeal to the Tribunal) –

section 84 (grounds of appeal) as though the sole permitted grounds of appeal were that the decision breaches the appellant’s rights under the EU Treaties in respect of entry to or residence in the United Kingdom so far as they were applicable to and in the United Kingdom by virtue of Part 4 of the EU withdrawal agreement.”

I do not need to set out the remaining references to modifications to schedule 2 to the EEA Regulations. Broadly, they permit the Tribunal to consider matters as if section 84 included a ground of appeal on the above (modified) basis.

The issue then is how the fourth part of the EU withdrawal agreement (“the Withdrawal Agreement”) applies (if at all) to this case. Part Four of the Withdrawal Agreement is concerned with transitional provisions which apply during the transition or implementation period between the date of the Withdrawal Agreement and 31 December 2020. It is no doubt for that reason that the modifications made to appeal rights under paragraph 6 of Schedule 3 distinguish as they do between decisions made and appeals brought during the transition period and decisions made after 31 December 2020.

Part Four of the Withdrawal Agreement applies “Union law” during the transition period. Certain provisions of the Treaties do not apply but none are relevant to the issues in this appeal. The Zambrano right is a derivative one which depends on Article 20 Treaty for the Functioning of the European Union (TFEU). The TFEU is undoubtedly part of “the EU Treaties”. It is continued in force during the transition period. It would appear therefore that the right of appeal against a decision made prior to 31 December 2020 continues in force until finally determined (see in that regard paragraph 5(2) of Schedule 3).

I have carefully considered how that interpretation is consistent with the removal of regulations 16 and 20 of the EEA Regulations which, as the Tribunal pointed out in James, are not part of the EEA Regulations which are preserved by the 2020 Regulations. However, the ground of appeal is not whether the Respondent’s decision is contrary to the EEA Regulations but whether it accords with the EU Treaties (as now modified by what is said in paragraphs 5 and 6 of Schedule 3). As the Respondent points out in her supplementary skeleton argument, the impact of the modifications made by paragraph 6(cc) of Schedule 3 is broadly that, in relation to an application made to the Respondent before 31 December 2020 but not decided before that date, an appellant can appeal only on the basis that the Respondent’s decision breaches the EEA Regulations (which no longer include regulations 16 and 20 as a result of paragraph 6 of Schedule 3) or the Withdrawal Agreement (which no longer confers any Zambrano right to reside). However, in relation to decisions taken prior to 31 December 2020 (as here) and appeals against decisions brought but not determined prior to 31 December 2020 an appellant continues to have a right of appeal on the basis that the Respondent’s decision breaches the EU Treaties as they applied prior to withdrawal.

For those reasons, I have concluded that the Appellant continues to have an appeal which this Tribunal has the jurisdiction to determine.

I am fortified in my conclusion by the general interpretation provisions of the EEA Regulations as those are modified by the 2020 Regulations. Consistently with the way in which schedule 2 to the EEA Regulations has been modified as set out above, regulation 2 of the EEA Regulations is also modified to state (in summary) that things done between exit day and commencement day refer to rights conferred by the EU Treaties as continued in force during that period by Part Four of the Withdrawal Agreement but after commencement day references to the EU Treaties are omitted. It is worthy of note that the modifications do not remove the reference under the definition of an “EEA decision” to a derivative residence card.

I do not need to set out the evidence of the Appellant and [JD] in detail. They were cross-examined by Ms Nolan. The evidence which emerged from their written statements and oral testimony is as follows.

The Appellant, [JD] and their children (including [P]) live together as a family unit. The Appellant works full time (he has the right to do so as a result of his earlier leave as continued by his application under the EUSS). [JD] works only part-time (although she is currently on maternity leave).

Notwithstanding the time spent working, I accept that the Appellant plays a pivotal role in the life of [P] in particular. The documentary evidence shows that [P] has behavioural problems. Although it appears that [P] has not yet been fully diagnosed with autistic spectrum disorder (ASD) and attention deficit hyperactivity disorder (ADHD) he has now been referred to professionals to consider this. [P] has been excluded from school on a number of occasions and is now attending a pupil referral unit between school attendances.

The evidence as to the Appellant’s involvement with [P] is not limited to his own say-so or that of [JD]. A statement from a Community Staff Nurse with Buckingham Healthcare NHS Trust opines that the Appellant’s absence “will have a significant impact on [P]’s emotional well-being, as well as impact his education as [the Appellant] has taken the role of supporting [P] with his school work”.

A social worker, Ms Ncube, has also provided a statement dated 2 March 2023 in which she states that the Appellant is the main contact for Child and Adolescent Mental Health Services in relation to [P] and “is currently a key person in ensuring that this child remains in education and accesses support that is targeted around the child’s Special Educational Needs and Neurodiversity”. She also states that the Appellant “plays a role of advocacy” (as the Appellant also emphasised in his evidence) and “is a big part of the Child in Need plan that has been proposed by Social Services”. Ms Ncube says that the Appellant’s “availability to participate in these proposed plans are a key factor in us being able to achieve better outcomes for this child.”

There are other reports specifically dealing with [P]’s behaviour which mention the Appellant’s involvement in seeking to resolve problems but those are now quite out of date.

[JD] was asked in evidence why she could not continue to look after [P] if the Appellant left the UK. She accepted that she and the Appellant do co-parent [P] but said that [P] “struggles to self-regulate his emotions” and the Appellant is better able to deal with this. [P] is “able to connect with his father better as they share a male bond”. She “struggles to get through to him” and “he responds better to his father”. She confirmed that, although the main emphasis is on the relationship with [P], the Appellant also helps out with their other children.

Of course, as British citizens, neither [JD] nor the children would be required to leave the UK if the Appellant were to go. In her statement, [JD] says this about the situation which would arise in that eventuality:

“If [the Appellant] is no longer present, [P] would be deprived of having a father, that, money cannot buy. It would reap devastating consequences for the development of our young son causing a detrimental impact on his upbringing emotionally and psychologically. It would also leave me unable to look after [P] as I would not be able to support in the financial upkeep to meet his needs, forcing [P] either into a life of destitute poverty along with our other 3 children that we raise together or sending [P] away from the family unit and country he has been born and raised in. This would deny him of his British citizenship and his rights to access free education, health and social care and a breach of [P]’s human rights.”

The central issue in relation to Zambrano is whether [P] would be obliged to leave the UK if the Appellant had to leave. I do not have to decide what the position would be if [JD] and the children were to remain in the UK and the Appellant were to leave. That position is covered by Article 8 ECHR. The Appellant has been given leave to remain on that basis in the past and I have no reason to suppose that he would not be given leave to remain on that basis in the future were he to apply for it. That though is not relevant to the issue here.

The question I have to ask myself is what would, as a matter of fact, occur. I refer to the requirements of regulation 16 of the EEA Regulations as set out at [13] of the error of law decision (which reflects EU law as it stood before the UK’s withdrawal from the EU). I also refer to the Supreme Court’s judgment in Patel and another v Secretary of State for the Home Department [2019] UKSC 59; [2020] Imm AR 600 (“Patel”) and to the extract from that judgment set out at [14] of the error of law decision. The judgment in Patel is of particular relevance in this case as, in that case as here, the relevant child was living with both parents only one of whom would be required to leave.

For that reason, and because it was not clear from her written statement what the position would be in fact if the Appellant were to leave, I asked [JD] whether she would stay or leave if the Appellant went back to Nigeria. She accepted that this would be a difficult decision not least because of the potential impact on [P] of the withdrawal of the support which he is receiving from the authorities in the UK. However, she said that the family would have to move with the Appellant as she felt that they would be unable to cope without the Appellant. Although Ms Nolan sought to shake [JD]’s evidence in this regard, and [JD] continued to say that it would be a difficult decision for the reasons I have set out, she continued to insist that the family would have to move with the Appellant. I accept her evidence in that regard.

The Appellant as might be expected, also said that the family would have to move together. He pointed out the level of involvement which he has with [P] and said that [P]’s behaviour would be “more challenging” if he were not here. Although he recognised that [P] is now getting some support with his behavioural problems, he pointed out that he (the Appellant) is the initiator of such support as has been obtained. He also pointed out that, although [P] now has some support and has been referred for a fuller diagnosis, that support was not yet completely in place. There were still problems with [P]’s schooling. [P] had not yet had a formal diagnosis. He was still fighting to have [P] moved to a school which could better meet [P]’s needs.

I accept the Appellant’s evidence about the role which he plays in [P]’s life. As I have noted above, that is confirmed by independent professionals (although I accept that the statements are brief, and I do not have a full report in that regard). I am however satisfied that, due to the family’s circumstances, the financial and emotional support which the Appellant provides and the situation in particular in relation to [P], if the Appellant left the UK, the family would leave with him.

Turning back then to regulation 16(5) as it applied at the date of the Respondent’s decision, the Appellant shares primary care of [P] with [JD] (in accordance with regulation 8(b)(ii)). [P] is a British citizen residing in the UK. I am satisfied that [P] would be unable to reside in the UK if the Appellant and [JD] left the UK. I am satisfied that [JD] would leave the UK with the Appellant if he returned to Nigeria, taking all four children with them. It follows that I accept that [P] would “be compelled to leave by reason of his relationship of dependency with his father” (as it was put in Patel). In reaching that finding, I pay particular regard to the strong emotional dependency which [P] has on his father as set out above.

For all of those reasons, I am satisfied that the Appellant meets the definition of a Zambrano carer as set out in regulation 16 of the EEA Regulations. Although regulation 16 is not preserved by the transitional arrangements which now apply, I am also satisfied that the Appellant comes within the provisions of the EU Treaties which apply to such a derivative right of residence.

It follows that I allow the Appellant’s appeal.