Post
by Obie » Fri Aug 06, 2021 1:07 pm
I am of the view that Akinsanya does not assist much in a case involving an application for DRC under the EEA Regulation 2016.
Akinsanya seem to affect EU settlement scheme applications, where the Home Office implemented a provision precluding people with leave to remain from qualifying.
In Akinsanya, it was accepted that the Regulations does not preclude people with leave to remain, only those with ILR are precluded.
The Home Office was therefore seeking the Court to Change the Regulations, which the court objected to.
So the position in the Regulation has always been, that if you have leave to remain you can apply for Zambrano, only ILR prevents you from doing so.
However, for children of Primary carer, it will appear they are prevented from qualifying if they have leave to remain. The primary carer themselves are not prevented, but the children or other dependants of the primary carers are. That seems a bit puzzling, but in an applicable case, that will have to be dealt with by the courts one day.
In this individual's case, it appears the judge got herself into a module, she thought having met the requirements of regulation 16(5), a person has to also meet subparagraph 6, but that is wrong and not the law.
In light of Akinsanya situation, and that case being the subject of a challenge, it is best not to emphasise it too much, as it may lead to a delay, as judge may decide to place permission to appeal on hold pending its conclusion.
So don't place too much reliance on it. Better to argue, that the judge failed to appreciate that the provision of regulation 16(6) is inapplicable to the case. A judge will be more comfortable with that, than relying on a case which is the subject of an appeal.
I fully accept that Akinsanya is good law, and is likely to be upheld, but no one wants to wait until that case is upheld, if their matter can be resolved quicker.
Smooth seas do not make skilful sailors
. @snooky what do I do now . Please help
