Court of Appeal denies derivative rights of residence to the children in education of former self-employed EU citizens

A longstanding provision of EU law is that the children of EU workers have the right to be educated in the EU worker’s host state, a right that continues even after the mobile EU citizen ceases to work or leaves the host state. The child has the right to remain in the host state to receive their education and, if required, they are entitled to have their other parent reside with them.

This is irrespective of the other parent’s nationality, as long as that parent is their primary carer and the child would be forced to leave the host state without the presence of their primary carer. Under EU case law these are referred to as Ibrahim and Teixeira derivative rights. Further case law confirmed that these derivative rights only apply in connection to EU workers, not to EU citizens who have exercised their right to take up self-employment in a host state.

The Court of Appeal in the case of Ayoola v Secretary of State for the Home Department [2025] EWCA Civ 1519 was asked to determine if the Withdrawal Agreement had gone beyond the case law and extended these derivative rights to the children and primary carers of self-employed EU citizens. Ultimately, the Court ruled that, notwithstanding the explicit reference to self-employed citizens in the Withdrawal Agreement and the Home Office agreeing that new rights had been created by the Agreement, the existing EU law position was to be preferred and that no derivative rights apply in the case of self-employed EU citizens.

Background 

The appellant is a Nigerian national and the mother of ‘O’ who was born to a Nigerian father. Following the breakup of the appellant’s relationship, in 2010 she married a French citizen who resided in the UK as a self-employed hairdresser. In 2010 the appellant and her daughter were issued with residence cards as his family members under the 2006 EEA Regulations.

The marriage between the appellant and the French citizen ended in divorce in 2014. However, only O appears to have received a further EEA residence card issued in 2015 based on a retained right of residence. O then naturalised as a British citizen in 2015 as the Home Office accepted that she had acquired permanent residence under EU law. O is now 16 years old and remains in full-time education with the appellant being her primary carer. In 2016 the appellant was granted leave to remain under Appendix FM which was renewed in 2018, 2021 and 2025 based on her being “on a ten-year route to settlement”.

In December 2020 the appellant made an application to the EU Settlement Scheme using the Zambrano carer application form. However, the covering letter accompanying the application also referred to the appellant having rights under Regulation 16(4) of the EEA Regulations on the basis that O had rights under Regulation 16(3). The cited Regulations gave effect to Ibrahim and Teixeira derivative rights and are distinct from Zambrano derivative rights which were covered under Regulation 16(5).

The Home Office refused the application on the basis that the appellant was not a Zambrano carer on account of her holding Appendix FM leave, meaning there was no risk that O as a British citizen would be required to leave the EEA. The Home Office decision does not appear to have engaged with the Ibrahim and Teixeira claim. The First-tier Tribunal allowed the appeal, but the Home Office successfully appealed to the Upper Tribunal who remade the decision and dismissed the appellant’s case.

The Upper Tribunal decision

By the time of the Upper Tribunal hearing, the appellant conceded that the Zambrano claim had fallen away following the decision in Velaj v Secretary of State for the Home Department [2022] EWCA Civ 767, as the appellant could not succeed due to the grant of Appendix FM leave. This meant the Upper Tribunal was asked only to consider Article 24(2) of the Withdrawal Agreement which gives effect to the Ibrahim and Teixeira derivative rights:

24(2) Where a direct descendant of a worker who has ceased to reside in the host State is in education in that State, the primary carer for that descendant shall have the right to reside in that State until the descendant reaches the age of majority, and after the age of majority if that descendant continues to need the presence and care of the primary carer in order to pursue and complete his or her education.

The Upper Tribunal dismissed the case on two grounds. Firstly, it found that the Article 24(2) argument constituted a new matter under The Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020, meaning the appellant required Home Office consent to air these arguments in the appeal.

The second ground, effectively considering the substance of the appeal notwithstanding the dismissal on ground one, was that the appellant could not rely on Article 24(2) of the Withdrawal Agreement as O was not at risk of having to leave the UK due to the appellant holding Appendix FM leave and that a “further application under Appendix FM would have a realistic prospect of success”.

The Court of Appeal 

The Upper Tribunal decision was appealed on two grounds; firstly that the finding on the new matter issue was wrong and, secondly, that the conclusion that the appellant did not satisfy Article 24(2) was incorrect. The Home Office conceded on the first point and so the Court was only required to consider the second ground (note also this decision which confirms that the Upper Tribunal judgment should not be followed in respect of new matters).

It should be noted this is not an appeal about the Appendix EU rules, just about what rights are available under the Withdrawal Agreement and who they apply to.

On the second ground, the Home Office argued that Article 24(2) could not assist the appellant as O was not the direct descendent of a worker given the French citizen had been self-employed. However, it was acknowledged that Article 25(2) appeared to give equivalent rights to direct descendants of self-employed workers who were in education at the end of the transition period. This is because Article 25(2) bluntly states that “Article 24(2) shall apply to direct descendants of self-employed workers”.

Nevertheless, although Article 25(2) might capture the primary carers of direct descendants in education of self-employed EU citizens, the Home Office argued that because O is British her right of residence in the UK was not based on holding a derivative right. For completeness, the Home Office again argued that the domestic law grant of status to the appellant meant that Articles 24(2) and 25(2) would not apply, as they were “backstop provisions” to prevent the child in education being forced to leave the host state.

The appellant accepted that Article 24(2) could not apply to the facts and recast the appeal under Article 25(2), arguing the Upper Tribunal should have found in the appellant’s favour on under this Article.

The Court adopted the approach of Celik v Secretary of State for the Home Department [2023] EWCA Civ 921 which set out the purpose of the Withdrawal Agreement:

It is important to identify the scope of the rights to reside of EU nationals and their family members in the period up to the end of the transition period and then to consider the provisions made for the continuation of those rights by the Withdrawal Agreement following that period.

Although the Home Office submissions appear to concede that Article 25(2) does create new rights under the Withdrawal Agreement for the direct descendants of self-employed EU citizens who have left the host state (and the primary carers of these children), the Court analysis differed and instead favoured the existing EU case law that such derivative rights only applied where the EU citizen was a worker. The Court argues the Commission’s guidance on the Withdrawal Agreement supports this position. Put another way, the Court read the text of Article 25(2), “Article 24(2) shall apply to direct descendants of self-employed workers” to mean exactly the opposite, that it does not apply to direct descendants of self-employed workers.

Arguably the Court’s logic here appears flawed because if the Withdrawal Agreement intended to support the existing EU law position, then surely there is no need for Article 25(2) at all. Simply saying nothing would preserve the existing EU law position as it is frozen at the end of the transition period. So the inclusion of Article 25(2) must have some intended consequence.

Although this appeal was about the provisions of the Withdrawal Agreement, it is worth noting that the Appendix EU Annex 1 definition of a “person with a derivative right to reside” does include an EU citizen who “has been a worker or self-employed person in the UK”. So either Appendix EU has gone further than what is required by the Withdrawal Agreement (as is possible), or the Home Office submission on this point in the appeal is the correct interpretation of the Withdrawal Agreement and is reflected in Appendix EU.

Notwithstanding the conclusion of the Court on Article 25(2) being terminal to the appeal, the judgment considers the position of the appellant if derivative rights relating to self-employed EU citizens existed. Looking at O’s position under the Withdrawal Agreement, the Court finds that although she meets the definition of a family member under Article 9, she cannot bring herself within the personal scope of Article 10.

The two reasons for this conclusion are that, firstly, she is not the family member of an EU citizen residing in the UK at the end of the transition period because her former EU step-father has left the UK. Secondly, even though at one point she resided in the UK under Article 12(3) of the Free Movement Directive, at the end of the transition period her residence in the UK was as a British national.

The first conclusion is understandable, although since O was a stepchild arguably this family relationship ended with her mother’s divorce from the EU citizen in 2014 (at which point retained rights of residence under the Directive kicked in).

The second reason could be more problematic because residence in the UK at the end of the transition period as a British national is not necessarily terminal to being within scope of the Withdrawal Agreement. If this were the case, then all dual EU-British citizens would be completely out of scope if they held British nationality at the end of the transition period. But dual EU-British citizens are within scope if they naturalised as British following the exercise of free movement as per the Lounes case (see the Commission’s guidance).

This is why dual EU-British citizens can sponsor family members for Withdrawal Agreement residence status, even though they do not need residence status themselves. Instead of exploring whether Lounes has any application in Ibrahim and Teixeira derivative right situations, the Court uses the case law negatively against O and consequently the appellant.

The final point made by the Court is that the grant of Appendix FM leave was fatal to the appellant, relying on the R (Akinsanya) v Secretary of State for the Home Department [2022] EWCA Civ 37 finding that Zambano applicants with alternative status on 31 December 2020 cannot succeed under the EUSS. The same approach should be adopted for Withdrawal Agreement derivative rights:

It therefore makes sense to treat them [Ibrahim and Teixeira derivative rights] as arising only in circumstances where the carer has no domestic (or other EU) right to reside here.

The judgment refers to the Velaj “fact-specific inquiry” that must be carried out by the courts in derivative rights cases, but it seems reliance on Akinsanya means any primary carer with alternative status at the end of the transition period cannot succeed. So it would be a very short inquiry in that respect.

At this point I would also refer to my write up of this recent Upper Tribunal case which explored the difference between a Zambrano derivative right and Withdrawal Agreement derivative rights. This judgment found that a grant of alternative immigration status was not fatal Ibrahim and Teixeira derivative rights (finding support for this position in Velaj). It is therefore significant the Court of Appeal appears to have taken a different direction from the Upper Tribunal on this point. 

Conclusion 

Ibrahim and Teixeira derivative rights make up a tiny fraction of EU Settlement Scheme cases with only 561 applications over the scheme’s lifetime. In the present case several aspects of the Court’s judgment appear unsatisfactory and so this may not be the end of the matter. The fundamental question seems to be, is the purpose of Article 25(2) to extend Ibrahim and Teixeira derivative rights to situations of self-employed EU citizens and if not, what situations are envisaged to be fall within this Article?

There is also some interesting discussion in the judgment about the difference between derivative rights and the retained right of residence under Article 12(3) of the Directive in the context of acquiring permanent residence under the Withdrawal Agreement.

However, in the respect of both the self-employment question and being able to qualify for permanent residence, even if there are Withdrawal Agreement barriers, then Appendix EU seems to take a more simplistic and generous approach. This is because, as noted above, the definition of a “person with a derivative right to reside” in Annex 1 of Appendix EU does include self-employed persons and when a derivative right is established, there is the possibility of qualifying for settled status after five years of continuous residence.