Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: UI-2021-000631
EA/05622/2020

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 28 March 2023

Before

THE HONOURABLE MR JUSTICE DOVE, PRESIDENT
MR C M G OCKELTON, VICE PRESIDENT

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

OLUWAYEMISI JANET JAMES
Respondent

Representation:
For the Appellant: Mr Mullen, Senior Home Office Presenting Officer
For the Respondent: Appeared in person.

Heard at Parliament House, Edinburgh on 6 February 2023

DECISION AND REASONS
1. This is an appeal by the Secretary of State.
2. The respondent, whom we shall call “the claimant”, is a national of Nigeria and is married to a national of Nigeria. They have three children, all British citizens.
3. The claimant came to the United Kingdom in September 2004 with entry clearance as a student. She was granted extensions of leave as a student. Her leave expired in April 2007, following which she appears to have remained in the United Kingdom without leave until 29 October 2013, when, on application, she was granted leave to remain under Appendix FM (in other words, as a family member) until 29 April 2016. On application, she has had two further grants of leave in that category, the latter until 24 October 2021.
4. In the meantime, the claimant has made three applications asserting a right to be in the United Kingdom under the Immigration (European Economic Area) Regulations 2006 and 2016. Her first application was in May 2008; it was refused. Her second application was under the EU Settlement Scheme, made on 13 June 2019 and refused on 3 July 2020. She then applied again, for a residence card on the basis of her parental responsibility for her children. That application was made on 4 August 2020 and refused on 13 October 2020. She appealed against that decision. The appeal was heard on 21 June 2021 at Glasgow. On 29 June 2021 Judge Prudham issued the Tribunal’s decision allowing her appeal.
5. The Secretary of State sought and obtained permission to appeal on two grounds. The first is that the First-tier Tribunal misconstrued the Zambrano jurisprudence; the second is that the Tribunal erred in finding that the claimant met the requirements of Regulation 16(5)(c) of the 2016 Regulations, by basing its conclusion on a counterfactual premise. The law governing the latter point in particular was derived by Judge Prudham from the decision of Mostyn J in Akinsanya v SSHD [2021] EWHC 1535 (Admin). That decision was, however, subject to an appeal to the Court of Appeal by the Secretary of State, and the law is now to be found in the decision of the Court of Appeal [2022] EWCA Civ 37. Following the publication of that decision, the Secretary of State was directed to indicate her position. She did so, continuing to rely on her original grounds. In addition, however, Mr Deller, Senior Home Office Presenting Officer, who drafted the Secretary of State’s Position Statement, sought permission to add a further ground of appeal asserting that, in any event, the First-tier Tribunal had no jurisdiction to allow the appeal as it had done.
6. The claimant was given an opportunity to respond to the application to add this further ground of appeal. She objected, pointing out that the Secretary of State had had ample opportunity to advance it before the First-tier Tribunal and that there was no good reason why she should be required to respond to it now. She repeated that objection at the hearing. It seemed to us, however, that it was of such a fundamental nature that we ought to hear argument on it. If the position in truth is that the First-tier Tribunal had no power to allow her appeal, it is not easy to see how we could uphold its determination as disclosing no error of law. We accordingly heard oral submissions from Mr Mullen and from the claimant on all three grounds.
7. So far as the statutory legal structure is concerned, the position is as follows. The claimant’s application was made under Regulation 16 of the 2006 Regulations, which, so far as relevant, reads as follows:
“Derivative Right to Reside
16 – (1) A person has a derivative right to reside during any period in which the person –
(a) is not an exempt person; and
(b) satisfies each of the criteria in one or more of paragraphs (2) to (6).
…
(5) The criteria in this 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 EE state if
the person left the United Kingdom for an indefinite period.
…
(8) A person is the “primary carer” of another person (“AP”) if –
(a) the person is either 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.”
8. Regulation 20 obliges the Secretary of State to issue a “derivative residence card” valid for five years to a person who produces a valid passport and proof of the right to reside under Regulation 16.
9. When those regulations were made, the United Kingdom was a Member State of the European Union, and they were intended to reflect EU law. The process of leaving the EU led to a series of legislative instruments providing for the continuation of certain EU rights of residence, the termination of others, and some transitional provisions. The 2006 Regulations themselves were revoked, with savings and transitional provisions, with effect from 31 December 2020, which was also “IP completion day”. The savings and transitional provisions are, for present purposes, to be found in the Immigration and Social Security Coordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020 (SI 1309/2020).
10. The basic scheme is that, following the withdrawal of the United Kingdom from the European Union, certain rights of residence derived from European law continued. Within the United Kingdom itself, national law introduced the “EU Settlement Scheme”, which enabled substantial numbers of those who had been residing or otherwise present in the United Kingdom in the exercise of rights under the Treaties to obtain immigration leave. Bilaterally, the relevant arrangements are in article 10 of the Agreement on the Withdrawal of the United Kingdom, Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community done at Brussels and London on 24 January 2020. Article 11 provides for Treaty provisions to apply to Union citizens who exercise certain Treaty rights in the United Kingdom and continue to reside in the United Kingdom, and United Kingdom nationals who exercised the right to reside in a Member State and continue to reside there.
11. Amongst the provisions of EU law that do not continue to have effect following the United Kingdom’s withdrawal from the European Union are the provisions entitling a person who is not a national of the United Kingdom or of a Member State to reside in the United Kingdom on the ground of having parental responsibility for a national of the United Kingdom or a Member State, who would not be able to exercise rights as a Union citizen if the person with parental rights had to leave the United Kingdom. Broadly speaking, the effect of the Zambrano line of cases came to a halt on 31 December 2020.
12. Those affected might, if appropriate, be able to obtain leave under the European Settlement Scheme; or might be able to obtain leave in some other capacity. The principles under which it was necessary for the United Kingdom to recognise the rights of a British citizen as a Union citizen ceased to have any meaning when British citizens ceased to be Union citizens on withdrawal. The 2020 Regulations give effect to article 10, by continuing the effect of the Immigration (European Economic Area) Regulations 2016 as amended for the benefit of those to whom article 10 applies. The detailed provisions are in Schedule 3 to the Regulations, of which paragraph 5 is headed “Existing Appeal Rights and Appeals”. The effect of that paragraph is that, if an appeal under the 2016 Regulations has not been finally determined before the repeal of those regulations on 31 December 2020, the regulations listed or modified in paragraph 6 of the Schedule continue to apply. That provision does not apply to appeals following the refusal of applications made under the EU Settlement Scheme within a specified time period, but otherwise applies to all appeals. There are no provisions continuing, even for the purposes of a pending appeal, regulations in the 2016 Regulations that are not listed in paragraph 6.
13. Regulations 16 and 20 are not listed in paragraph 6. It follows that they do not apply to the determination of an appeal after 31 December 2020. That is the case even if, immediately before that date, paragraphs 16 and 20 would have been relevant to the determination of the appeal. These provisions therefore have the effect that what might have been a good ground of an appeal based on the regulations in force at the time of an application, a decision, the launching of an appeal, or even during part of the progress of an appeal through the appellate system, cease to be provisions upon which reliance may be placed insofar as procedure on the appeal takes place after 31 December 2020.
14. Provisions to that effect seem at first sight to be surprising, and possibly unjust. After all, an appellant may not be able to control the speed at which an appeal does progress through the system; and the Secretary of State would appear to have power to deprive an appellant of a derivative residence card by appealing against a decision of the First-tier Tribunal in favour of an applicant, and so preventing the appeal from being finally determined before 31 December 2020.
15. The provisions do have that effect, but there is no injustice: because on that date the Zambrano entitlement ceased, so that even if a derivative residence card had been issued it would on that date cease to entitle its holder to remain in the United Kingdom; and no useful purpose would be served by allowing anybody to obtain a residence card by continuing an appeal after that date. Thus there is in fact no injustice in narrowing the rights or bases of an appeal during the progress of the appeal through the system. The provisions to which we have referred are simply part of the larger scheme of bringing the Zambrano rights, derived from EU law and not preserved by article 10 of the withdrawal agreement, to an end on IP completion day. Those whose rights of residence in the United Kingdom derived in EU law from their parental responsibility from a British citizen as a Union citizen can after that date no longer derive such a right from EU law. The British citizen child is not a citizen of the Union and the status of the child’s parents is governed by national law.
16. For these reasons we accept the argument put by Mr Deller as an additional ground of appeal. In June 2021, when Judge Prudham heard and determined the claimant’s appeal, articles 16 and 20 of the 2016 Regulations had been repealed, with no savings for pending appeals. His decision that the appeal fell to be allowed under the Regulations was fundamentally flawed. In these circumstances, although the Secretary of State’s argument was put very late, we allow the application to amend and cannot allow the judge’s decision to stand.
17. The Secretary of State’s other grounds of appeal are and would have been applicable only if Regulations 16 and 20 of the 2016 Regulations had applied to the appeal before him. The decision of the Court of Appeal in Akinsanya makes it clear that the true interpretation of Regulation 16(5) depends on consideration of the factual realities of the family’s situation as revealed by the evidence. The position is made even clearer in Velaj v SSHD [2022] EWCA Civ 767 where Andrews LJ (with whom Whipple LJ and King LJ agreed) said this:
“[47] I do not accept that Regulation 16(5)(c), as modified by Regulation 16(8) and (9), admits of only one interpretation. Nor do I accept that the construction contended for by Mr Cox is the natural and obvious one. 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.
[48] "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 seems to me to be the more natural interpretation, and carries with it the necessary implication that the postulated event (here, leaving the UK) is realistic, and not just theoretical. At the risk of stating the obvious, 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.
[49] 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. I agree with the Upper Tribunal that 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. As they put it at [48] of the determination, "the key issue of inability to reside in the United Kingdom requires detailed consideration and a causal link with the departure of both carers."
[50] 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 and therefore, if Mr Cox were right, the 2018 amendment, far from implementing Chavez-Vilchez, would have the opposite effect.
[51] I am fortified in my view of the correct construction by the phrase used in the predecessor provision, Regulation 15A(4A): "if P were required to leave the UK" which seems to me to be even clearer. Assuming that "required to leave" is given a wider meaning than "legally compelled" in line with Zambrano itself (as I consider it must be), 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.
[52] The meaning of the phrase does not change when there are two primary carers. In the previous Regulations the decision-maker was required to consider the question whether the child would be unable to remain in the UK "on the basis that both P and the person with whom care responsibilities are shared would be required to leave the United Kingdom." "On the basis that" cannot be interpreted as requiring a counterfactual assumption. It must mean that the decision maker is required to look at matters on a factual basis, i.e. from the perspective of what would happen to the child if in fact, in the circumstances of that specific case, both primary carers would leave the UK. The words read into Regulation 16(5)(c) by Regulation 16(9) make no material difference to the approach to be taken.
[53] In my judgment there is nothing in the decision in Akinsanya which precludes this court from adopting that construction of Regulation 16(5)(c).”
18. The appellant’s clear evidence before the First-tier Tribunal was that if her application for a derivative residence card failed, her children would nevertheless remain in the United Kingdom. The reality was, no doubt, that she would remain with them, probably having obtained further leave as she has at present. Certainly there was no evidential basis for assuming that the children would be “unable to reside in the UK”. Thus, even if the appellant’s appeal were to be based on Regulations 16 and 20 of the 2016 Regulations, on the evidence before the First-tier Tribunal, it should have been dismissed.
19. The other ground of appeal, Ground 1 of the Secretary of State’s original grounds, depends not so precisely on the terms of Regulation 16 of the 2016 Regulations as on the interaction of Union and national law in this area. In Akinsanya the leading judgment in the Court of Appeal was given by Underhill LJ. His analysis of Regulation 16(7) led him to dismiss the appeal on the facts of that case, but he also undertook at [39]-[57] an analysis of the purpose and effect of the Zambrano jurisprudence. The outcome of that analysis was summarised in Velaj by Andrews LJ, who was also a member of the Court in Akinsanya, as follows at [57]:
“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.”
20. As we have said, the claimant had obtained successive periods of leave to remain under Appendix FM as a family member. At the date of her application for a derivative residence card she still had leave in that capacity. There has never been any evidence supporting a hypothesis that she would be unable to obtain further leave. No action had been taken to remove her from the United Kingdom. She was not entitled to the Zambrano right at the date of her application (because she had leave) and she has at no stage demonstrated her entitlement to it as a “last resort”.
21. All the three grounds raised by the Secretary of State have merit. Our conclusions on the grounds originally raised are such that the outcome of this appeal would have been the same, even if the fundamental matter raised by the additional ground had not been before us. No conceivable injustice is therefore done to the claimant by our considering that further ground.
22. For the reasons we have given we allow the Secretary of State’s appeal. The First-tier Tribunal’s decision erred in law. We set it aside. We substitute a decision dismissing the claimant’s appeal.

C. M. G. OCKELTON
VICE PRESIDENT OF THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Date: 8 March 2023