Iyabode Adeola Ayoola v Secretary of State for the Home Department

THE IMMIGRATION ACTS

This is an appeal by the Secretary of State. For ease of reference, we refer to the parties as they were in the First-tier Tribunal. The Respondent appeals against the decision of First-tier Tribunal Judge Colvin promulgated on 10 March 2022 (“the Decision”) allowing the Appellant’s appeal against the Respondent’s decision dated 10 May 2021 refusing her application under the EU Settlement Scheme (“EUSS”) as a person with a “Zambrano” right to reside.

The Appellant is a national of Nigeria. She came to the UK in July 2005 as a visitor. Her daughter [O] was born on 24 April 2009. The Appellant was granted leave to remain in November 2016 as a person with sole responsibility for [O] who became a British citizen in July 2015.

The Respondent accepted that the Appellant is the primary carer of a British citizen child. The issue was said by Judge Colvin to be “whether the appellant should have made an application under the Immigration Rules or Article 8” following the Court of Appeal’s judgment in Akinsanya v Secretary of State for the Home Department [2022] EWCA Civ 37 (“Akinsanya”) (see [3] of the Decision). The Respondent’s case in very broad summary is that the Appellant would not be required to leave the UK as she had leave to remain at the time of the application and the “specified date” under the EUSS. Accordingly, she was not entitled to a “Zambrano” right to reside.

At [10] of the Decision, the Judge asserted that “[t]he core issue in this appeal is whether the respondent has misdirected herself as to the meaning and effect of EEA Regulation 16(5)(c)” (that is to say paragraph 16(5)(c) of the Immigration (European Economic Area) Regulations 2016 (“the EEA Regulations”). Having set out her reasoning in that paragraph, [11] and [12] of the Decision, she concluded that she had “reached the conclusion that the current interpretation of Regulation 16(5)(c) of the EEA Regulations by the respondent as set out in the refusal letter is a misdirection for all the reasons given above” ([13] of the Decision). She went on to say that, applying that regulation as she considered it should be interpreted “the appellant has a derivative right of residence notwithstanding that she has not made an application under Appendix FM of the Immigration Rules or an Article 8 claim”.

The Respondent’s grounds are brief and therefore bear setting out in full:

“The Judge of the First-tier Tribunal has made a material error of law in the Determination. The Tribunal has misconstrued the combined effect of the decision of the Administrative Court in Akinsanya and the Court of Appeal’s dismissal of the Secretary of State’s Appeal. Although the latter Court held – as Judge Colvin notes – that the unambiguous wording of Regulation 16(7) defeated the argument that a right of residence was not held by a person with limited leave on a different basis, it upheld the Secretary of State’s ground that the Ruiz Zambrano right was one of last resort, which had underpinned the policy and the Scheme rules. Specifically the Court did not declare the impugned rule unlawful or indicate that only a rule with the opposite effect could exist. Accordingly the only available statutory ground of appeal available absent any rights under the Withdrawal Agreement – that the decision was not in accordance with Scheme rules – is currently inchoate pending the post-Akinsanya review of the relevant rules. Accordingly the appeal has been allowed on no clear statutory basis.”

Permission to appeal was granted by First-tier Tribunal Judge Seelhoff on 27 May 2022 in the following terms so far as relevant:

“... 2. The grounds assert that the Judge erred in that, although there are issues regarding the approach to take to Zambrano cases, she did not identify the legal basis on which the appeal was allowed.

3.

The judge has not identified which provisions of the Immigration Citizenship Rights Appeals (EU Exit) Regulations 2020 form the basis for allowing the appeal. Although there are problems regarding the approach to Zambrano cases the Rules have not been set aside and the judge has not articulated if and how the Withdrawal Agreement might apply.

4.

The grounds are arguable.”

The matter comes before us to decide whether the Decision contains a material error of law. If we find it does, we then have to decide whether to set aside the Decision. If we do so, it is then necessary to consider whether to re-make the decision in this Tribunal or remit the appeal to the First-tier Tribunal for that purpose.

We had before us a core bundle of documents relating to the appeal as well as the Respondent’s and Appellant’s bundle before the First-tier Tribunal. We do not need to refer to the documents as the issue is one of pure law.

Having heard submissions from Mr Kotas and Mr Thompson, we indicated that we would reserve our decision and issue that in writing which we now turn to do.

We begin our consideration by setting out the Judge’s reasons for allowing the appeal as follows:

“10.

The core issue in this appeal is whether the respondent has misdirected herself as to the meaning and effect of EEA Regulation 16(5)(c). The Home Office Guidance, EU Settlement Scheme: person with a Zambrano right to reside (version 4.0 of 27 April 2021) sets out this interpretation at p.13:

‘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 dependent 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.’

Before considering whether that analysis contains any error of law, it is necessary to set out what lies behind this appeal both in terms of fact and law. Dealing first with the facts, the Appellant was granted leave to remain on the basis of Article 8 ECHR because she has sole care of her British citizen daughter. She was granted leave to remain (on a 10-year route) in November 2016. That leave continued until 12 May 2021. Therefore, both at the time of the EUSS application and on the specified date under the EUSS (11pm on 31 December 2020) the Appellant had extant leave to remain. True it is that this leave came to an end shortly after the decision under appeal, but it remained open to the Appellant to extend that leave. In fact, Mr Kotas indicated that the Appellant now has further leave until 28 December 2024. That is not however something which can have a bearing on whether the Judge made an error of law in her legal analysis.

The Appellant’s appeal is under the Immigration Citizens Rights Appeals (EU Exit) Regulations 2020 (as the Judge noted at [8] of the Decision). Under those Regulations, the only ground of appeal is that the decision under appeal breaches either the Immigration Rules (“the Rules”) under which the decision was made or the withdrawal Agreement between the UK and EU (“Withdrawal Agreement”). We did not understand the Judge to be considering any issue under the Withdrawal Agreement. She does not mention it. Accordingly, her conclusion can only be that the decision was not in accordance with the Rules under which it was made.

That then brings us on to the relevant Rules. We did not discern any disagreement between the parties as to the Rules which apply. Those are to be found in Appendix EU to the Rules (“Appendix EU”).

The Respondent refused the Appellant’s application because she did not meet the definition of a “person with a Zambrano right to reside” in Annex 1 to Appendix EU. That definition paragraph reads as follows so far as relevant:

“a person who has satisfied the Secretary of State…, 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:

(a)

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, by satisfying:

(i)

the criterion in paragraph (1)(a) of that regulation;

and
(ii) the criteria in:

(aa) paragraph (5) of regulation 16 of the EEA Regulations;… or

…; and

(b)

without leave to enter or remain in the UK, unless this was granted under this Appendix.”

As is there made clear, the definition turns largely on paragraph 16 of the EEA Regulations. Paragraph 16 of the EEA Regulations (“Regulation 16”) reads as follows so far as relevant to our consideration:

“16.

—(1) A person has a derivative right to reside during any period in which the person—

There was disagreement between Mr Kotas and Mr Thompson as to the case-law which applies in a case such as this. We have therefore reviewed the cases which the parties submitted were relevant and those which Judge Colvin considered were relevant.

We begin with the case of Akinsanya. In the Administrative Court ([2021] EWHC 1535 (Admin), Mostyn J held that, when including within the definition of “a person with a Zambrano right to reside” in Appendix EU the requirement that a person should not have leave to enter or remain in the UK, the Secretary of State had erred both under EU law and in her understanding of Regulation 16. The Judge concluded that both EU law and Regulation 16 would only act as a barrier to a Zambrano right to reside where an individual had indefinite leave to remain.

The Secretary of State appealed Mostyn J’s judgment which came before the Court of Appeal on 7 December 2021. By its judgment dated 25 January 2022 ([2022] EWCA Civ 37) the Court allowed the Secretary of State’s appeal so far as that concerned the position under EU law ([57] of the judgment). However, the Court went on to point out that, when framing the definition in Annex 1 to Appendix EU, the Secretary of State may have intended to reflect the pre-existing position under Regulation 16. Accordingly, the Court went on to consider what was the pre-existing position under Regulation 16. This argument turned on the distinction between the reference to “indefinite leave” in the definition under Regulation 16(7) and the reference to “leave to enter or remain” in the Annex 1 definition. As the Court pointed out, it was always open to the Secretary of State to go beyond what EU law requires when formulating the position in domestic law. If that is what she had intended when drafting Regulation 16(7) then the definition in Appendix EU would not reflect the pre-existing position. The Court concluded at [66] of the judgment that “whatever the contextual considerations, the language of regulation 16(7)(c)(iv) is simply too clear to allow it to be construed as covering persons with limited leave to remain”. The conclusion in Akinsanya therefore turned on the Court’s interpretation of Regulation 16(7).

Broadly, the outcome of Akinsanya was that the Secretary of State agreed to reconsider the relevant provisions of Appendix EU and agreed that she would not determine any applications under Appendix EU of those claiming a Zambrano right to reside until that reconsideration was complete. That agreement could have no application to the Appellant’s case as her application had by then already been decided. The Court of Appeal judgment led to a declaration that “[t]he Secretary of State erred in law in her understanding of [Regulation 16] when providing in Annex 1 to Appendix EU… 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”. For completeness, we were told by Mr Kotas that the Secretary of State has completed her reconsideration but has decided that the definition in Appendix EU should not be amended.

Mr Kotas drew our attention to the case of Velaj v Secretary of State for the Home Department [2022] EWCA Civ 767 (“Velaj”). Although Velaj could not have been before Judge Colvin as the judgment post-dates the Decision, we consider that it is appropriate to have regard to Velaj as it is potentially relevant both to Akinsanya and to the judgment of the Supreme Court in Patel v Secretary of State for the Home Department [2019] UKSC 59 (“Patel”) upon which reliance was placed by the Appellant in this case and by Judge Colvin in her reasoning.

Although we accept Mr Thompson’s submission that the case of Velaj is different on its facts to Akinsanya, what is important is the Court’s consideration of the central issue set out at [35] of the judgment whether “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”. It will be recalled that the Court of Appeal in Akinsanya considered that the Secretary of State had potentially intended to go further in drafting Regulation 16 than EU law required. This led to the outcome that the Secretary of State had (potentially at least) erred in her understanding of Regulation 16 when enacting Appendix EU. However, as we have already noted, the outcome turned on the Court’s interpretation of Regulation 16(7).

We accept as the Court of Appeal indicated at [45] when recording the Secretary of State’s submission, that Velaj was concerned with a different provision of Regulation 16 which was not so clearly worded as that with which the Court was concerned in Akinsanya. However, what is said about the implications of the Akinsanya judgment at [57] to [70] of Velaj is instructive for our purposes:

“57.

This Court found for the SSHD on the first issue. After analysing the Zambrano jurisprudence…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.

58.

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 [57] it was unclear whether in framing that definition the SSHD 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 SSHD's purpose in framing the definition because it accepted Ms Akinsanya's case on the construction of Regulation 16.

59.

It is important to understand what that case was. It is set out at [59] of the 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.

61.

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 SSHD.

62.

As Underhill LJ pointed out at [60] 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.’

63.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. Mr Blundell submitted that the SSHD in making the Regulations had not intended to accord rights to carers of EU citizen children that went beyond their entitlement in EU law and that Regulation 16(7) should therefore be construed in such a way as to avoid that result. That submission was rejected.

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.

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. In those circumstances, even if I had not been a member of the constitution in that case, and able to gainsay the suggestion from my own personal knowledge of what was and was not considered, it would have been impossible to draw the inference that the Court must have interpreted Regulation 16(5)(c) in a particular way in order to reach the conclusion that it did.

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.

As Mr Kotas pointed out, therefore, Akinsanya was squarely concerned with the interpretation of Regulation 16(7) whereas Velaj was concerned with Regulation 16(5) which, as Judge Colvin noted at [10] of the Decision was the crucial issue in this case.

We also record that Mr Thompson accepted that this was not an “Akinsanya case” although that was for different reasons. He said that Akinsanya had no application to this case because, in Akinsanya, the appellant had some leave to remain whereas at the date of the Respondent’s decision at least, the Appellant had very little leave to remain (about eleven days).

That factor led to Mr Thompson submitting that the Respondent had erred in relation to her own policy as that indicated that if an applicant had less than 28 days’ leave remaining, that individual would have a Zambrano right to reside. We do not have to consider that submission as it formed no part of Judge Colvin’s conclusion. We record however Mr Kotas’ reply in that regard taken from the decision letter that the Appellant had failed to show that she would not be entitled to further leave to remain (as indeed she was later granted). He said that the Home Office policy in this regard precluded the Secretary of State from refusing a Zambrano right to reside if a person made an application close to the expiry of their leave. In this case, the application was made several months before expiry of the Appellant’s leave (on 29 December 2020).

We do not entirely understand this submission since, it seems to us that, if an individual has any extant leave at the time of making an in-time application (at least where that is leave within the Rules), that leave would continue by virtue of section 3C Immigration Act 1971. We do not however have to consider that issue at this juncture. As we say, Judge Colvin did not indicate that she was allowing the appeal by reference to any policy of the Respondent.

In addition to that point, Mr Thompson relied on Patel. Judge Colvin referred in this regard to the Appellant’s submission that the Respondent had relied on the Court of Appeal’s judgment in that case rather than the Supreme Court’s judgment. It is therefore necessary to consider the effect of Patel.

As Mr Thompson pointed out, Patel was concerned with the factors relevant to a Zambrano right, in particular what was meant by “unable to reside” in the EEA Regulations 2006. The case of Patel involved two conjoined appeals. Mr Patel was the carer of elderly and infirm British citizen parents and so his case has no relevance. Mr Shah whose appeal was considered alongside that of Mr Patel was the father of a British citizen child but his wife, the child’s mother, also continued to live with them. Accordingly, the Court was considering the position of joint primary carers. As such, the position of Mr Shah is factually different from the Appellant’s case. She is her child’s sole carer. However, Mr Thompson prayed in aid the principles which the Supreme Court said applied to the issue whether a child would be compelled to leave the UK if his or her primary carer had to leave. Those are set out succinctly at [30] to [32] of the judgment (where the Supreme Court was considering the error made by the Court of Appeal) as follows:

“30.

…The overarching question is whether the son would be compelled to leave by reason of his relationship of dependency with his father. In answering that question, the court is required to take account, ‘in the best interests of the child concerned, of all the specific circumstances, including the age of the child, the child’s physical and emotional development, the extent of his emotional ties both to the Union citizen parent and to the third-country national parent, and the risks which separation from the latter might entail for that child’s equilibrium’ (Chavez-Vilchez, para 71). The test of compulsion is thus a practical test to be applied to the actual facts and not to a theoretical set of facts. As explained in para 28 of this judgment, on the FTT’s findings, the son would be compelled to leave with his father, who was his primary carer. That was sufficient compulsion for the purposes of the Zambrano test. There is an obvious difference between this situation of compulsion on the child and impermissible reliance on the right to respect for family life or on the desirability of keeping the family together as a ground for obtaining a derivative residence card. It follows that the Court of Appeal was wrong in this case to bring the question of the mother’s choice into the assessment of compulsion.

31.

It is likewise not relevant, contrary to the submission of Mr Blundell, that, had Mrs Shah remained in the UK with the child, Mr Shah could have had no derivative right of residence. On the facts as found by the FTT, the relevant relationship of dependency with Mr Shah was made out and that was not going to happen.

32.

In those circumstances I consider that the Court of Appeal made an error of law when it treated as determinative what could happen to Mr and Mrs Shah’s son if the father left the UK, rather than what the FTT had found would happen in that event. In other words, it was not open in law to the Court of Appeal to hold that Mr Shah had no derivative right of residence because the mother could remain with the child in the UK even if the father was removed.”

Whilst we readily accept that those are the principles which apply to the question whether Regulation 16(5) is met when considered as a whole, as Mr Kotas submitted and we accept, it says nothing about the issue which arises under Regulation 16(5)(c) when considered with Regulation 16(7), still less how that all impacts on the definition in Appendix EU. The issue is whether the primary carer will be compelled to leave. The Respondent’s position is that he or she will not be required to do so if he or she has or is entitled to leave to remain based on Article 8 ECHR. As the Supreme Court itself pointed out in Patel, if the Tribunal had found that Mrs Shah would have remained in the UK with the child, Mr Shah could not have succeeded. The issue whether the primary carer will be compelled to leave is largely one of fact but may also be impacted upon by law. That then brings in as relevant the Akinsanya issue as explained in Velaj. The Secretary of State has now indicated, in relation to the issue which arose in Akinsanya, that she intended and intends to maintain the definition in Appendix EU whereby a Zambrano carer is precluded from relying on a Zambrano right if he or she has limited leave to enter and remain.

Ultimately, the only issue which we have to consider at this stage is whether Judge Colvin erred in law when reaching her decision allowing the appeal. As Judge Seelhoff pointed out when granting permission to appeal, it is far from clear under which provision the Judge intended to allow the appeal. If the Judge intended to indicate by [11] of the Decision that the Appellant had a right in EU law to which the Respondent’s guidance ran contrary, she erred in law. The Court of Appeal in Akinsanya was clear that no such right exists. Nor do we understand how or why Judge Colvin considered Patel to be relevant to this issue. As we have pointed out, no such issue arose in Patel (or more accurately the appeal of Mr Shah).

The Judge could only allow the appeal on the basis that the Respondent’s decision was not in accordance with the Rules in relation to the EUSS or not in accordance with the Withdrawal Agreement. The Withdrawal Agreement was not mentioned and therefore the Judge could only have thought that she was allowing the appeal on the basis that the decision was not in accordance with the Rules. However, on the face of the Rules, the decision was clearly in accordance with them. The Court of Appeal in Akinsanya decided that the definition in Annex 1 to Appendix EU was (or might be) unlawful only because the Secretary of State may have misinterpreted the position under Regulation 16(7) of the EEA Regulations. The Secretary of State has now indicated that she is maintaining her position and the definition in Appendix EU.

The Judge also mentions at [12] of the Decision a consolidated group of appeals decided by another First-tier Tribunal Judge. We do not know what those are or were, since no reference is given. In any event, decisions of another First-tier Tribunal Judge are not binding. Without any citation of those cases or reasoning as to how those apply to the facts of this particular case, it is not possible to say how the decision in the consolidated appeals impacts on this case.

For all those reasons, we consider that the Judge has erred in law by failing to provide reasons for allowing the appeal and has erred in her understanding of the domestic law relating to the Zambrano right to reside in cases where the primary carer has an alternative basis of stay.

We do not go on to re-make the decision. Mr Thompson explained to us that the Appellant’s child is also an EU citizen and may have rights which are relevant to the Appellant’s basis of stay in the UK in that capacity. There was no consideration of that alternative basis of stay by Judge Colvin and we can find no evidence relating to it, but it is appropriate to allow the Appellant to re-argue her case including on that basis if she so wishes. We have therefore given directions below for further evidence to be filed and for a further hearing with written and oral submissions to be made.