A recent judgement of the Court of Appeal (CoA) reinforces the legal principle that the acquisition of British citizenship by the child can remove the foundation for the derivative right under European law and the Withdrawal Agreement (WA).
Facts:
The appellant is a Nigerian citizen who came to the UK as a visitor in 2005 and overstayed. She started a relationship with a man, S, who was also from Nigeria. On 24 April 2009, she gave birth to a daughter, O, of whom S is the father. Shortly afterwards, the relationship between the appellant and S came to an end, while O remained in the care of the appellant.
In 2010, S married a French citizen, C. In October 2010, the Secretary of State issued residence cards to O and S as the family members of an European Economic Area (EEA) national under the Immigration (European Economic Area Regulations), or EEA Regulations, 2006.
After C and S divorced in 2014, O was issued a further residence card in 2015, which was valid until February 2020, based on retained rights of residence and was later naturalised as a British citizen on 31 July 2015. O, now aged 16, is still in full-time education and resides with the appellant, who has had no contact with the father.
The appellant has repeatedly been granted limited leave to remain (LLR) under Appendix FM of the domestic Immigration Rules since 2016, with her current leave extended until May 2028, placing her on a 10-year route to settlement.
In December 2020, the appellant applied for settled status under the EU Settlement Scheme (EUSS), asserting a derivative right to reside as the primary carer of O, based on O’s education rights, which are themselves derived from the EU law cases of Ibrahim and Teixeira. The Secretary of State for the Home Department (SSHD) refused the EUSS application, primarily because the appellant already held LLR under Appendix FM, which was deemed to preclude the grant of a Zambrano right to reside, and there was a realistic prospect of further LLR being granted, meaning that O would not be compelled to leave the UK. The appellant’s subsequent appeal reached the CoA.
Decision:
The CoA dismissed the appeal, upholding the refusal of the appellant’s application for status under the EUSS. The Court held that Article 24(2) of the WA must be interpreted as preserving rights that already existed under EU law, rather than granting new ones. This interpretation aligns with the WA’s purpose and is supported by the Advocate General’s opinion in Teixeira. Moreover, the courts are bound by Article 4(4) WA to interpret the provision in conformity with pre-transition Court of Justice of the European Union (CJEU) case law. The CJEU case of Czop established that the original derivative education right applied only to children of employed workers, and not the self-employed. Since the relevant EEA national C was self-employed, no Ibrahim/Teixeira right existed for the appellant’s daughter under EU law prior to the transition period.
O had been naturalised as a British citizen since 2015. The Court found that, by the conclusion of the transition period, she was residing in the UK as a national, and not solely under a retained EU right. For a family member to be included under Article 10(1)(f) of the WA, they must have resided under the directive’s provisions and continue to reside there thereafter. As O was residing as a British citizen, her residence was no longer dependent on EU law rights.
Implications:
The most significant implication is the judicial interpretation that Article 25(2) (which relates to children of the self-employed) operates as a preservative measure, and not a rights-creating measure. By adhering to the pre-transition CJEU ruling in Czop, the Court confirmed that, if a derivative education right for the child of a self-employed person did not exist under EU law before the transition period, Article 25(2) of the WA does not retrospectively create it. This means that primary carers, whose rights were derived from a self-employed EEA national, will face a higher, and possibly even an insurmountable hurdle in establishing EUSS status based on these derivative rights.
The ruling confirms that if a third-country national carer already holds secure, substantive leave to remain under domestic law (Appendix FM), the derivative right under the WA is not engaged. Article 25(2) only arises if, in reality, the child would be deprived of their education right in the absence of EUSS status. Since domestic leave fulfils the same purpose (i.e., allowing the carer to stay and care for the child), the “mischief” is already addressed.
