Automated Summary
Key Facts
The appellant, a Moroccan citizen, applied for an EEA family permit in 2019 to accompany her two British national children to the UK. The application was refused in 2020, with the Home Office asserting she had not proven primary carer status and that derivative rights under regulation 16(5) are a 'right of last resort' requiring prior Appendix FM application. The First-tier Tribunal allowed the appeal, finding she met the Zambrano principle criteria (primary carer of British children unable to reside in the UK without her) and that no legal authority supports the requirement to apply under Appendix FM first. The Upper Tribunal upheld this decision, emphasizing that regulation 16(5) does not impose a prior application condition and that limited leave to remain does not extinguish Zambrano-derived rights.
Issues
- Whether the judge erred in law by relying on Article 8 ECHR and Section 55 of the 2009 Act when determining if the Zambrano principle applied to the appellant's derivative right to reside.
- Whether the appellant was required to apply for entry clearance under Appendix FM of the Immigration Rules before claiming a derivative right to reside under Regulation 16(5) of the 2016 Regulations, and whether such a requirement is a 'right of last resort'.
Holdings
- The High Court judgment in Akinsanya [2021] EWHC 1535 (Admin) affirmed that limited leave to remain under national law does not extinguish a claim for Zambrano-derived residence. This supports the appellant's position that her limited leave under Appendix FM coexists with her Zambrano right.
- The Upper Tribunal upheld the First-tier Tribunal's decision to allow the appeal, confirming that the judge correctly applied regulations 11(5)(e) and 16(5) of the 2016 Immigration (EEA) Regulations. The judge found no requirement to apply under Appendix FM for the Zambrano-derived right to reside, and no authority supported the claim that such a right is a 'last resort'.
- The Upper Tribunal rejected the respondent's application to adjourn the hearing pending the Court of Appeal's decision in Akinsanya, citing potential prejudice to the British children and the distinct factual differences between the cases.
Remedies
The Upper Tribunal upheld the First-tier Tribunal's decision to allow the appeal, confirming that the appellant is entitled to a derivative right to reside under Regulation 16(5) of the 2016 Immigration (EEA) Regulations. The judgment clarifies that the Zambrano principle applies and that the appellant does not need to apply under Appendix FM of the Immigration Rules to qualify for this right.
Legal Principles
The Zambrano principle, derived from CJEU case law, establishes a derivative right to reside for non-EEA nationals who are primary carers of British citizens (or other EU citizens) whose Union citizenship rights would be deprived of genuine enjoyment if the carer were removed. This principle was applied in Patel v Secretary of State for the Home Department [2019] UKSC 59 and upheld in this case as the core legal basis for the appellant's right to reside under regulation 16(5) of the 2016 Immigration (EEA) Regulations.
Precedent Name
- Patel v Secretary of State for the Home Department
- Ruiz Zambrano v Office national de l'emploi
- Akinsanya v Secretary of State for the Home Department
Cited Statute
- Immigration (EEA) Regulations 2016
- Immigration Acts
- Borders, Citizenship and Immigration Act 2009
Judge Name
D. Sheridan
Passage Text
- "My conclusion is that nothing decided in the CJEU or domestically since the decision in Zambrano supports the theory that the existence of a concurrent limited leave to remain of itself automatically extinguishes a claim for Zambrano residence. On the contrary, it is clear to me 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 judge therefore did not err in finding that the appellant did not need to apply for entry under Appendix FM in order to be eligible for a derivative right to reside under regulations 11(5)(e) and 16(5). As the appellant plainly met the conditions of regulations 11(5)(e) and 16(5), the judge did not err in allowing the appeal.
- I am satisfied that any such error [regarding article 8 and section 55] was immaterial because it is plain that the judge allowed the appeal not because of article 8 (or section 55) but because (a) the appellant satisfied the conditions of regulations 11(5)(e) and 16(5) of the 2016 Regulations; and (b) no argument was advanced, or authority cited, to support the proposition that a right of residence under 16(5) is only available if a person first applies under Appendix FM.