marcidevpal wrote: ↑Tue Apr 18, 2023 4:55 pm
Akinsaya & You
Hi again A,
So, you appear to NOT be like Akinsaya in this way:
Akinsaya was a Zambrano carer and then applied for leave to remain under Appendix FM. You had leave to remain under Appendix FM and then applied for settlement as a Zambrano carer.
This difference between you and Akinsaya may not matter at the end of the day. UTIAC judges do not appear to always care whether you had LTR under Appendix FM before you applied for a derivative residence card - or not. Underhill LJ cares, but your case may never get to the Court of Appeal.
You seem to be like Akinsaya in this way:
You both had leave to remain under Appendix FM on 31 December 2020. The Home Office says anyone with leave to remain under Appendix FM on this day should be refused settlement under Appendix EU. If Akinsaya wins at here next appeal, then you can benefit from her win.
Hi all,
Update on my appeal. The Judge has allowed my appeal for the derivative card as zambrano carer.
Whilst waiting for this appeal, I applied for EUSS in June 2021, this was refused and currently under appeal. I'm just wondering how this would impact the appeal or how home office will implement this decision given that home office no longer issue derivative card.
Has anyone experience this before? It would nice to hear your experience.
Summary of the appeal
I will just copy and past the para;
By a decision promulgated on 16 December 2022, the Upper Tribunal (myself and
Deputy Upper Tribunal xxxx) found there to be an error of law in the
decision of First-tier Tribunal Judge xxxxx dismissing the Appellant’s appeal
against a decision made by the Respondent on 22 September 2020, refusing his
application for a derivative residence card as the primary carer of a British Citizen
child. The Tribunal gave directions for the re-making of the decision in this Tribunal.
A copy of the Tribunal’s decision is appended hereto for ease of reference.
The appeal came back before me on 31 January 2023 for re-making. On that occasion,
the Respondent raised a new issue relating to the Tribunal’s jurisdiction to determine
the appeal. A supplementary skeleton argument was submitted by the Respondent in
which she sought to argue that the Tribunal no longer had jurisdiction to decide the
appeal as regulation 16 of the Immigration (European Economic Area) Regulations
2016 (“the EEA Regulations”) had not survived the revocation of the EEA Regulations
after 31 December 2020. An issue was also raised about the Respondent’s preparedness
for the hearing as the Respondent had not had sight of the Appellant’s bundle before
the First-tier Tribunal.
The Appellant then as now appeared in person. I was conscious that it would be unfair
for me to dismiss his appeal for want of jurisdiction without giving him the
opportunity to take advice on or be given time to consider the issue. I was also told by
Mr xxx who appeared for the Respondent on that occasion that the issue of
jurisdiction was to be determined in another case by a Presidential panel shortly after
the hearing. He sought an adjournment so that I could consider the issue with the
benefit of a decision following full argument on that issue. I agreed to the adjournment
not simply for that reason but also because the Respondent did not have all the
necessary documents from the Appellant in order to proceed. I gave directions for the
Appellant to serve those documents and gave the Respondent the opportunity to apply
for a further adjournment in the event that the decision of the Presidential panel to
which he had referred had not been promulgated prior to the hearing before me (if that
decision was still thought to be relevant)
The resumed hearing of the appeal was relisted before me on xxx xxx 2023. On
Thursday xxx xx 2023, the Respondent sought a further adjournment. She did so on
the basis that the decision of the Presidential panel had recently been promulgated but
not yet reported. She wished to rely on that decision but considered that it would be
unfair for the Appellant to have to deal with it without further time. . In James, the Tribunal concluded that it
did not have jurisdiction to re-determine Ms James’ appeal in not dissimilar
circumstances to the current appeal
I issued a Note on xxxx2023 informing the Appellant of the decision in James (and
appending it) and inviting him to consider whether he wished to seek an adjournment
of the hearing on 21 xxx or whether he wished to proceed. I indicated that I would
be content to adjourn if he wished to make that application but equally that, if the
Respondent were correct, an adjournment would “simply prolong matters to no
benefit” which would ultimately be a waste of the Appellant’s time and money
As it was, the Appellant did not seek an adjournment. Instead, he submitted a
supplementary skeleton argument advancing his position that in James the Tribunal
did not conclude that it had no jurisdiction; alternatively, the decision was contrary to
decisions in other (unreported) cases, and/or was wrong in law
For all of those reasons, I am satisfied that the Appellant meets the definition of a
Zambrano carer as set out in regulation 16 of the EEA Regulations. Although
regulation 16 is not preserved by the transitional arrangements which now apply, I am
also satisfied that the Appellant comes within the provisions of the EU Treaties which
apply to such a derivative right of residence.
It follows that I allow the Appellant’s appeal.
