Iyabode Adeola Ayoola v Secretary of State for the Home Department

For regulation 9 of the Immigration (Citizens' Rights Appeals) (EU Exit) Regulations 2020, a matter expressly and sufficiently raised in an application is treated as having been considered by the Secretary of State when the application is refused, even if the refusal does not mention it. The reference must be clear enough that a response could reasonably be expected.

A buried or tangential reference, particularly where the application is advanced on a different legal basis, does not meet that standard. The matter is then a new matter, which the Tribunal cannot consider without the Secretary of State’s consent.

The appellant, a Nigerian national and primary carer of her British-citizen daughter, held limited leave under Appendix FM. She applied under the EU Settlement Scheme as a person with a Zambrano right to reside. Her application also referred to the daughter’s education and regulations 16(3) and (4) of the Immigration (European Economic Area) Regulations 2016.

The Secretary of State refused the application on the Zambrano basis. The First-tier Tribunal allowed the appeal. On the Secretary of State’s appeal, an earlier Upper Tribunal panel set that decision aside for error of law and directed remaking.

At the resumed hearing, the appellant accepted that her Zambrano claim failed. She instead relied on Article 24(2) of the Withdrawal Agreement. The central issues were whether that claim was a new matter and, if not, whether refusal breached an Article 24(2) right.

1. Appeal dismissed. The Article 24(2) case was a new matter under regulation 9(6) of the Immigration (Citizens' Rights Appeals) (EU Exit) Regulations 2020. The Secretary of State had withheld consent. The Tribunal therefore lacked jurisdiction to determine it.

2. The new-matter regime preserves the Secretary of State’s role as primary decision-maker. A matter sufficiently raised in an application is treated as having been considered upon refusal, even where the decision is silent. Otherwise, the Secretary of State could avoid appellate scrutiny by omitting to address a matter expressly raised.

3. The application must, however, raise the matter with sufficient clarity to make a response reasonably expected. The appellant did not mention Article 24(2) or the Withdrawal Agreement. Her references to regulations 16(3) and (4) of the 2016 Regulations, within an application and form directed to a Zambrano claim, did not clearly advance an Article 24(2) claim. It was unrealistic to expect the Secretary of State to trace those provisions through earlier Regulations and case law in order to infer the omitted claim.

4. In any event, the Article 24(2) claim would have failed. The appellant already held Appendix FM leave, with a realistic prospect of renewal. There was accordingly no present risk that she or her daughter would be compelled to leave the United Kingdom. The right to reside associated with a child’s access to education does not require a more advantageous, permanent, or fee-free immigration status.

5. The decision of the First-tier Tribunal was set aside and the appeal was remade by dismissal.

• Upper Tribunal (Immigration and Asylum Chamber): The present panel remade the decision and dismissed the appeal: [2024] UKUT 143 (IAC).
• Upper Tribunal (Immigration and Asylum Chamber): An earlier panel allowed the Secretary of State’s appeal, set aside the First-tier Tribunal’s decision for error of law, and directed remaking in the Upper Tribunal.
• First-tier Tribunal: First-tier Tribunal Judge Colvin had allowed the appellant’s appeal against the refusal of her EU Settlement Scheme application.