Iyabode Adeola Ayoola v Secretary of State for the Home Department

Articles 24(2) and 25(2) of the Withdrawal Agreement preserve, rather than create, residence rights already existing under EU law for children in education and their primary carers. Article 25(2) remains subject to pre-transition CJEU case law excluding an Ibrahim/Teixeira derivative right where the relevant parent was self-employed. A derivative right gives no additional EUSS entitlement where the child is British and the carer already has domestic leave to remain. The assessment is practical and fact-specific.

The appellant, a Nigerian national, had overstayed in the United Kingdom but held limited leave to remain under Appendix FM on account of her caring responsibilities for her British daughter, O. O’s father had married a French citizen, C, who was self-employed in the United Kingdom. O obtained residence rights and was later naturalised as a British citizen.

The appellant’s application for settled status under the EUSS was initially advanced on a Zambrano basis. The First-tier Tribunal allowed her appeal, but the Upper Tribunal allowed the Secretary of State’s appeal and, on remaking the decision, dismissed the appellant’s appeal in March 2024 in UI-2022-003001. Before the Court of Appeal, the new-matter issue was conceded and the appellant amended her case to rely on Article 25(2) of the Withdrawal Agreement. The central question was whether that provision entitled her to a derivative right of residence despite the self-employed sponsor, O’s British citizenship and the appellant’s existing domestic leave.

Baker LJ gave the leading judgment. Zacaroli LJ and Newey LJ agreed. The appeal was dismissed.

1. Nature of the preserved rights. Following the approach in Celik v Secretary of State for the Home Department [2023] EWCA Civ 921, the Court identified the EU-law rights existing before the end of the transition period and then considered how the Withdrawal Agreement preserved them. Article 24(1) preserves rights under Article 45 TFEU and Regulation (EU) No 492/2011, including the child’s right to education and the related right of the primary carer to reside with the child. Article 24(2) preserves such pre-existing rights; it does not create a free-standing new right of residence.
2. Article 12(3) of Directive 2004/38/EC likewise preserved existing residence rights following the death or departure of a Union citizen. Article 24(2) preserves the relevant subset, including rights recognised in Baumbast, Ibrahim and Teixeira. The rationale is the child’s right to complete education in the host State with the primary carer’s presence where that is required.
3. Self-employed workers. Article 25(2) applies Article 24(2) to direct descendants of self-employed workers. Read with Article 4(4) of the Withdrawal Agreement, it preserves only rights that existed under EU law before the transition period. The Court applied Secretary of State for Work and Pensions v Czop and Punokova [2013] P.T.S.R. 334, as followed in Hrabkova v Secretary of State for Work and Pensions [2018] 1 CMLR 5. Article 12 of Regulation 1612/68 applied only to children of employed persons. It did not create an Ibrahim or Teixeira derivative right where the relevant parent was self-employed.
4. Personal scope. Independently, O was outside the personal scope of the Withdrawal Agreement. C was not within Article 10(1)(a), so O did not qualify under Article 10(1)(e). Nor did Article 10(1)(f) apply, because O was residing in the United Kingdom as a British citizen at the end of the transition period, rather than under Article 12(3) of the Directive.
5. Existing domestic leave and practical assessment. The question whether a derivative right is engaged requires a fact-specific inquiry into what would happen in reality, applying the approach in Velaj v Secretary of State for the Home Department [2022] EWCA Civ 767. Consistently with R (Akinsanya) v Secretary of State for the Home Department [2022] EWCA Civ 37, such indirect and contingent rights arise to prevent the child being unable to complete education without the primary carer. The appellant already held domestic leave to remain, and O was already being educated in the United Kingdom as a British citizen. Article 25(2) therefore gave the appellant no additional entitlement to leave under the EUSS.

1. Court of Appeal (Civil Division): dismissed the appeal from the Upper Tribunal on 28 November 2025 in [2025] EWCA Civ 1519.
2. Upper Tribunal Immigration and Asylum Chamber: allowed the Secretary of State’s appeal against the First-tier Tribunal on 7 December 2022 and directed that the decision be remade. On 18 March 2024, on remaking the decision in UI-2022-003001, it dismissed the appellant’s appeal.
3. First-tier Tribunal: allowed the appellant’s appeal on 9 March 2022.