The right interpretation of Regulation 16(5)(c) of the Immigration (European Economic Area) Regulations 2016 (“the 2016 Regulations”), was in difficulty in Velaj v Secretary of State for the Home Department [2022] EWCA Civ 767 (31 May 2022)
The two judgements of the Court of Appeal in Velaj and R(Akinsanya) v Secretary of State for the Home Department [2022] EWCA Civ 37, [2022] 2 WLR 681 address completely different points.
Relevantly, Regulation 16(5)(c), with which Velaj was involved with, requires regard to be had to whether the related dependant British citizen would be unable to reside in the United Kingdom or in one other EEA State if the main carer left the United Kingdom for an indefinite interval.
In Velaj, the Court was clear that in Akinsanya, that Appellant’s case on Regulation 16 was completely centered upon Regulation 16(7). Regulation 16(7) defines an “exempt person” for the functions of Regulation 16(1)(a). The classes of exempt individuals embrace British Citizens, and individuals with Indefinite Leave to Remain (“ILR”). Akinsanya contended that individuals with restricted go away are not exempt individuals and by advantage of paragraph 1(b) are entitled to a spinoff proper to reside, alongside their go away to stay.
Whether Ms Akinsanya might fulfill the standards in Regulation 16(5) if she had go away to stay underneath another provision of home legislation did not instantly come up, and it was not one thing which the Court thought of on her attraction.
As per paragraph 65 of…
