Adekunle Oluwaseun Osunneye v Secretary of State for the Home Department

For an appeal against an EEA decision made before 31 December 2020, the transitional provisions preserve the appeal until it is finally determined. The appeal may therefore be decided by reference to the EU Treaties as they applied before withdrawal, including the derivative Zambrano right.

Where care of a British citizen child is shared, the question is practical and fact-sensitive. The tribunal must determine what would actually happen if the applicant left the United Kingdom. It must not substitute the question whether another carer could care for the child. Relevant considerations include the child’s emotional dependency, development, ties and the consequences of separation.

The appellant appealed against a decision refusing his application for a derivative residence card under the Immigration (European Economic Area) Regulations 2016. The First-tier Tribunal dismissed the appeal. On 16 December 2022, the Upper Tribunal set that decision aside for error of law and directed a rehearing.

The respondent argued that the Upper Tribunal no longer had jurisdiction because regulations 16 and 20 had not been preserved after 31 December 2020. The central issues were whether the appeal right survived and, if so, whether the appellant was a qualifying Zambrano carer of his British citizen child.

1. Jurisdiction. The appeal concerned a decision made on 22 September 2020, before 31 December 2020. Paragraph 5(1)(c) of Schedule 3 to the Immigration and Social Security Coordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020 preserved the relevant appeal provisions for an EEA decision taken before commencement day. Under paragraph 5(2), the appeal remained live until finally determined. Although regulations 16 and 20 were not included in paragraph 6, regulation 36 and the modified Schedule 2 appeal provisions remained relevant.
2. The modified ground of appeal required consideration of whether the decision breached rights under the EU Treaties as applicable in the United Kingdom by virtue of Part Four of the Withdrawal Agreement. Article 20 TFEU, on which the derivative Zambrano right depends, formed part of those Treaties during the transition period. The decision in Secretary of State for the Home Department v Oluwayemisi Janet James UI-2021-000631; EA/05622/2020 was therefore not followed.
3. Zambrano test. Applying Patel and another v Secretary of State for the Home Department [2019] UKSC 59, the question was what would in fact happen if the appellant left, not what could theoretically happen. The appellant could share primary care with the child’s mother. The evidence established substantial emotional, practical and financial involvement in the child’s life.
4. The mother’s evidence that she and the children would leave the United Kingdom with the appellant was accepted. The child would consequently be compelled to leave by reason of the relationship of dependency with the appellant. The appellant therefore met the regulation 16 definition of a Zambrano carer and came within the applicable EU Treaty rights.
5. The appeal was allowed under the Immigration (European Economic Area) Regulations 2016.

• First-tier Tribunal: Judge N M Paul dismissed the appeal against the respondent’s decision dated 22 September 2020.
• Upper Tribunal: On 16 December 2022, the Upper Tribunal found an error of law, set aside the First-tier Tribunal’s decision and directed rehearing. The present judgment remade the decision and allowed the appeal.