Ayoola v Secretary of State: Withdrawal Agreement rights and primary carers of British children

The Court of Appeal has dismissed an appeal concerning the interpretation of Articles 24 and 25 of the EU Withdrawal Agreement, clarifying the circumstances in which primary carers of children can claim residence rights under the EU Settlement Scheme (EUSS).

Iyabode Ayoola, a Nigerian national, came to the UK in 2005 and overstayed. Her daughter O, born in 2009, initially acquired residence rights as the family member of an EEA national when O's father married a French self-employed hairdresser. Following their divorce, O obtained further residence cards based on retained rights and was naturalised as a British citizen in 2015. The appellant had been granted limited leave to remain under Appendix FM due to her caring responsibilities for O.

In 2020, the appellant applied for settled status under the EUSS, initially claiming Zambrano rights before arguing she qualified under the Ibrahim/Teixeira principles preserved in Articles 24(2) and 25(2) of the Withdrawal Agreement. The Secretary of State refused the application, noting the appellant already held leave to remain and there was no prospect of either mother or daughter being required to leave the UK.

Lord Justice Baker, delivering the Court's judgement, addressed the proper interpretation of the relevant Withdrawal Agreement provisions. Article 24(2) concerns direct descendants of workers who have ceased to reside in the host state but whose children remain in education. Article 25(2) extends this to direct descendants of self-employed workers.

The Court found that Article 24(2) should be interpreted as preserving pre-existing EU law rights rather than granting new ones. The rights arose from the child's entitlement to complete education in conditions equivalent to those enjoyed by nationals, which necessarily required the primary carer's presence.

The appellant's claim failed on multiple grounds. First, she fell into the same category as the claimant in the CJEU's decision in Czop, having no pre-existing Ibrahim/Teixeira rights because the relevant EEA national was self-employed rather than a worker. The Court held that Article 4(4) of the Withdrawal Agreement required interpretation in conformity with Czop.

Second, O fell outside the personal scope of the Withdrawal Agreement under Article 10. Whilst initially residing under Article 12(3) of Directive 2004/38/EC, by the end of the transition period she was residing as a British citizen.

Third, and significantly, the appellant already possessed leave to remain under Appendix FM. Drawing on the reasoning in Akinsanya regarding Zambrano rights, the Court held that derivative rights under Baumbast, Ibrahim and Teixeira arise "only indirectly and contingently" to prevent situations where children cannot complete education without their primary carer's presence. Where domestic law already accords the necessary right to reside, such derivative rights do not arise.

The underlying purpose of these provisions is protecting freedom of movement for workers under Article 45 TFEU and freedom of establishment under Article 49. Where a child is already a British citizen and the primary carer has existing residence rights, the child is being educated "under the best possible conditions" without need for additional EU-derived rights.

This decision clarifies that the Withdrawal Agreement does not create parallel residence rights where domestic law already provides adequate protection, and that British citizenship of the child is material to assessing claims under Articles 24 and 25.

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