Adekunle Oluwaseun Osunneye v Secretary of State for the Home Department

30 May 2023

[2023] UKUT 162 (IAC)

Upper Tribunal

A dad from Nigeria is allowed to stay in the UK because his young son, who has behavioral issues, needs his care. Even though some rules changed after Brexit, the judge decided the dad's family would have to leave with him, so he can stay.

Key Facts

•The Appellant, a Nigerian national, entered the UK as a student and subsequently overstayed.
•He applied for a derivative residence card under the Immigration (European Economic Area) Regulations 2016 (EEA Regulations), claiming a Zambrano right based on his British citizen child, [P], who has behavioral problems.
•His application was refused, and the First-tier Tribunal dismissed his appeal.
•The Upper Tribunal found an error of law in the First-tier Tribunal's decision and directed a remaking of the decision.
•A jurisdictional issue arose concerning the continued applicability of the EEA Regulations after the UK's withdrawal from the EU.
•The Respondent argued that the Tribunal lacked jurisdiction because relevant regulations were not preserved under transitional provisions.
•The Appellant's appeal was based on the argument that if he were removed from the UK, his family, including [P], would be compelled to leave with him.

Legal Principles

Transitional provisions in the Immigration and Social Security Coordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020 (SI 1309/2020) govern the continued applicability of EEA Regulations after Brexit.

Immigration and Social Security Coordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020 (SI 1309/2020)

The Zambrano right is a derivative right to reside depending on Article 20 TFEU, which was continued in force during the transition period by Part Four of the Withdrawal Agreement.

Article 20 TFEU, Part Four of the Withdrawal Agreement

Regulation 16 of the EEA Regulations (as applied before Brexit) defines the criteria for a derivative right to reside, including the 'primary carer' test. The test focuses on whether the child would be compelled to leave the UK if the applicant left.

Regulation 16 of the EEA Regulations 2016

The test of compulsion in Zambrano cases is a practical test based on actual facts, considering the child's best interests and the risks of separation from the parent.

Patel and another v Secretary of State for the Home Department [2019] UKSC 59

Outcomes

The Upper Tribunal allowed the Appellant's appeal.

The Tribunal found that it had jurisdiction to hear the appeal despite the revocation of certain EEA Regulations. The Tribunal accepted that the Appellant met the criteria for a Zambrano carer because the family would be compelled to leave the UK with him.

Adekunle Oluwaseun Osunneye v Secretary of State for the Home Department

Key Facts

Legal Principles

Outcomes

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