Adekunle Oluwaseun Osunneye v Secretary of State for the Home Department
[2023] UKUT 162 (IAC)
Iyabode Adeola Ayoola v Secretary of State for the Home Department
18 March 2024
[2024] UKUT 143 (IAC)
Upper Tribunal
A mum from Nigeria applied for UK residency. Her application was rejected because she already had permission to stay. She then tried to use a different law to appeal, but the court said that was a new argument and didn't consider it. The court also said even if it did consider the new argument, the mum already had permission to stay, so she couldn't win.
Key Facts
- •Iyabode Adeola Ayoola, a Nigerian citizen, applied for settled status under the EU Settlement Scheme (EUSS) claiming a "Zambrano" right to reside as the primary carer of her British citizen daughter.
- •Her application was refused because she already held leave to remain under Appendix FM of the Immigration Rules.
- •The Upper Tribunal previously set aside the First-tier Tribunal's decision allowing the appeal due to errors in law and lack of reasoning.
- •The appellant now argues entitlement to reside based on Article 24(2) of the EU Withdrawal Agreement (WA), regarding the rights of a primary carer of a direct descendant of a worker in education.
- •The Secretary of State argued that the Article 24(2) issue was a "new matter" under regulation 9 of the Immigration (Citizens' Rights Appeals) (EU Exit) Regulations 2020, requiring consent which was refused.
Legal Principles
A matter raised in an application to the Secretary of State is considered "considered" even if the decision is silent, provided it's sufficiently clear.
Regulation 9(6)(b) of the Immigration (Citizens' Rights Appeals) (EU Exit) Regulations 2020
A "new matter" under regulation 9 requires the Secretary of State's consent to be considered by the tribunal.
Regulation 9 of the Immigration (Citizens' Rights Appeals) (EU Exit) Regulations 2020
Reliance on a different legal provision or instrument, even with the same facts, constitutes a new matter if it requires consideration of additional criteria.
Mahmud [2017] UKUT 488 (IAC); AK and IK [2019] UKUT 67 (IAC)
Article 24(2) of the WA grants a right to reside to the primary carer of a direct descendant of a worker in education.
Article 24(2) of the EU Withdrawal Agreement
The test for compulsion to leave under Article 24(2) is practical, considering whether the applicant and the child would actually have to leave; existing leave negates compulsion.
Velaj v Secretary of State for the Home Department [2022] EWCA Civ 767; Akinsanya v Secretary of State for the Home Department [2022] EWCA Civ 37
Outcomes
The appeal was dismissed.
The Article 24(2) claim was deemed a "new matter" not considered by the Secretary of State in the original application, lacking consent, and ultimately lacking merit given the appellant's existing leave.
The First-tier Tribunal's decision was set aside.
The First-tier Tribunal judge made errors of law by failing to provide reasons for allowing the appeal and misinterpreting the law related to Zambrano rights and the relevant regulations.
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