Osunneye vs Secretary of State for the Home Department

This case concerned an appeal by Mr. Adekunle Oluwaseun Osunneye against the decision of the Secretary of State for the Home Department, refusing his application for a derivative residence card as the primary carer of a British Citizen child under the Zambrano principles.

TLDR:

• Mr. Osunneye appealed the refusal of his application for a derivative residence card.
• The case examined the transitional provisions of the EEA Regulations post-Brexit.
• The Upper Tribunal found in favor of Mr. Osunneye, allowing his appeal.

The appellant, Mr. Adekunle Oluwaseun Osunneye, appeared in person to challenge the refusal of his application for a derivative residence card. The application was based on his role as the primary carer of his British Citizen child, [P], who has behavioral problems. The Secretary of State for the Home Department, represented by Ms. A Nolan, Senior Home Office Presenting Officer, argued that the tribunal no longer had jurisdiction to decide the appeal due to changes in the regulations post-Brexit.

Following the UK's withdrawal from the EU, the Immigration (European Economic Area) Regulations 2016 were continued for transitional purposes by statutory instruments, including the Immigration and Social Security Coordination (EU Withdrawal) Act 2020. The tribunal had to consider whether the transitional provisions allowed for Mr. Osunneye's appeal to proceed.

Mr. Osunneye's application was initially refused on the basis that there was insufficient evidence to show that [P] lived with him, that he made decisions regarding [P]'s welfare, or that he was financially responsible for [P]. The Secretary of State argued that [P] could remain in the UK with his mother, who is also a British citizen.

During the hearing, the tribunal considered the factual background, including Mr. Osunneye's immigration history and his relationship with his child. The tribunal also examined the legal framework, including the relevant provisions of the EEA Regulations and the Withdrawal Agreement.

The tribunal found that Mr. Osunneye played a pivotal role in [P]'s life and that if he were to leave the UK, [P] would be compelled to leave as well. The tribunal concluded that Mr. Osunneye met the definition of a Zambrano carer and that his appeal should be allowed.

The decision emphasized the importance of considering the best interests of the child and the practical implications of the primary carer's removal. The tribunal's findings were based on the evidence presented, including statements from healthcare professionals and social workers.

The tribunal allowed Mr. Osunneye's appeal under the Immigration (European Economic Area) Regulations 2016, providing him with the right to a derivative residence card as the primary carer of a British Citizen child.

Legal representatives: Mr. Adekunle Oluwaseun Osunneye appeared in person, Ms. A Nolan, Senior Home Office Presenting Officer for the respondent.

Judicial Panel: Upper Tribunal Judge Lesley Smith

Case Citation Reference: [2023] UKUT 162 (IAC)