Preservative, Residual Nature of Education-Based Derivative Residence Rights under the Withdrawal Agreement: Commentary on Ayoola v Secretary of State for the Home Department [2025] EWCA Civ 1519

1. Introduction

The Court of Appeal’s decision in Ayoola v Secretary of State for the Home Department [2025] EWCA Civ 1519 is a significant addition to the fast‑developing body of case law on citizens’ rights under the EU–UK Withdrawal Agreement (“WA”) and the EU Settlement Scheme (“EUSS”). It clarifies:

the meaning and scope of Articles 24(2) and 25(2) WA, and
the relationship between EU‑derived “education rights” and domestic immigration leave.

In particular, the Court holds that:

Articles 24(2) and 25(2) WA are preservative, not creative, in character – they do not generate new categories of residence rights but “freeze” and continue rights that already existed under EU law at the end of the transition period; and
education‑based derivative residence rights (the Baumbast/Ibrahim/Teixeira line of authority) are residual and do not arise where a primary carer already has an adequate domestic right to reside.

The case sits at the intersection of several legal regimes:

pre‑Brexit EU free movement law (Regulation 1612/68 / Regulation 492/2011; Directive 2004/38/EC),
the Withdrawal Agreement, especially Articles 4, 10, 13, 24 and 25,
domestic EEA Regulations 2016, particularly regulation 16 (derivative rights), and
the post‑Brexit EUSS and domestic family migration routes under Appendix FM of the Immigration Rules.

1.1 The parties and factual background (in brief)

The appellant, Ms Ayoola, is a Nigerian national who entered the UK as a visitor in 2005 and overstayed. She had a daughter, O, in 2009 with S (also Nigerian). S later married a French national, C, who was trading in the UK as a self‑employed hairdresser. In 2010, S and O were granted residence cards as family members of an EEA national under the 2006 EEA Regulations.

S and C divorced in 2014. In 2015, O obtained a further residence card based on “retained rights of residence” and, on 31 July 2015, she was naturalised as a British citizen. The Secretary of State accepted that O had acquired a right of permanent residence under EU law before naturalisation. O, now 16, continues to live with her mother and has no contact with her father.

Separately, in 2016 Ms Ayoola was granted limited leave to remain under Appendix FM (as the carer of O), renewed in 2018 and 2021, and later extended to May 2028. She is on a ten‑year route to settlement and is expected to be able to apply for indefinite leave to remain (“ILR”) in 2026.

On 29 December 2020, just before the end of the transition period, she applied under the EUSS for settled status. She used the ‘Zambrano carer’ route and also invoked the education‑based derivative rights under regulation 16(3)–(4) of the 2016 EEA Regulations (the domestic implementation of Ibrahim and Teixeira).

The Secretary of State refused the application because:

the EUSS Zambrano route excluded those who already held leave to remain (other than EUSS leave); and
there was no realistic prospect of O having to leave the UK if the EUSS application failed, given the appellant’s existing and renewable Appendix FM leave.

The First‑tier Tribunal allowed her appeal. The Upper Tribunal set that decision aside and ultimately dismissed the appeal, finding that:

the attempt to rely on Article 24(2) WA was a “new matter” (a point later conceded on appeal), and
in any event, Article 24(2) did not assist because the appellant’s removal was not in issue and she already had a more secure domestic status under Appendix FM.

Before the Court of Appeal, the legal issues shifted significantly. The appellant ultimately:

accepted that Article 24(2) WA (which speaks of “workers”) did not apply because the EEA national, C, was self‑employed, not employed; but
argued that she fell squarely within Article 25(2) WA, which states that “Article 24(2) shall apply to direct descendants of self-employed workers.”

The central question, therefore, was whether Article 25(2) WA entitled the appellant, as the primary carer of a British child whose original EU sponsor had been self‑employed, to a right to reside under the EUSS, notwithstanding her existing Appendix FM leave.

2. Summary of the Judgment

Lord Justice Baker (with whom Newey and Zacaroli LJJ agreed) dismissed the appeal. The key conclusions can be summarised as follows:

2.1 Interpretation of Article 24(2) WA

Article 24 WA deals with rights of workers (employees). Article 24(1) incorporates the rights under Article 45 TFEU and Regulation 492/2011, including the right of children of workers to access education under the same conditions as nationals, and the associated derivative rights of their primary carers recognised in Baumbast, Ibrahim and Teixeira (para 71).

Article 24(2), although worded as a positive grant (“shall have the right to reside”), is construed as a preservative provision: it continues, in the post‑Brexit context, the specific subset of rights which had previously been preserved by Article 12(3) of Directive 2004/38/EC (para 73).

Those rights are:

the right of a child of a worker to continue education in the host State after the worker has left or died; and
the associated derivative right of the child’s primary carer to reside for as long as is necessary for the child to complete that education.

Article 24(2) does not create new categories of residence rights beyond what existed under EU law at the end of the transition period.

2.2 Interpretation of Article 25(2) WA

Article 25 covers rights of self‑employed persons. Article 25(2) states that “Article 24(2) shall apply to direct descendants of self‑employed workers.”

On its face, this appears to extend the Ibrahim/Teixeira-type derivative rights to children of self‑employed EEA nationals (and their primary carers), seemingly overturning the CJEU judgment in Czop and Punokova, which held that Article 12 of Regulation 1612/68 did not apply to children of self‑employed persons.

However, the Court of Appeal rejects the view that Article 25(2) creates such new rights (paras 75–77). Relying on:

Article 4(4) WA (obliging UK courts to interpret WA provisions referring to EU law in conformity with pre‑transition CJEU case law), and
the European Commission’s Guidance Note on the Withdrawal Agreement,

the Court holds that Article 25(2) must be understood, like Article 24(2), as preserving pre‑existing EU law rights only to the extent that such rights existed. Since Czop had definitively ruled that education rights under Regulation 1612/68/Regulation 492/2011 did not extend to children of self‑employed persons, there were no such rights to preserve in the present case (para 79).

2.3 The appellant and O are outside the personal scope of the Withdrawal Agreement

Even if Article 25(2) could in principle assist children of self‑employed persons, the Court finds that O—the British child from whom any derivative right would be drawn—is outside the personal scope of Part Two WA, as defined by Article 10 (para 80).

O qualifies as a “family member” under Article 9(a)(i) WA (via Article 2(2) Directive 2004/38), but Article 10 only brings family members within the scope of Part Two if they are linked to a qualifying Union citizen under Article 10(1)(a)–(d) and fall under Article 10(1)(e) or (f).
O does not qualify under Article 10(1)(e) because C (the French sponsor) was not resident in the UK at the end of the transition period.
Nor does she qualify under Article 10(1)(f): although she had once resided under Article 12(3) of the Directive, by the end of the transition period she was residing as a British citizen, not as a family member of a Union citizen.

If the child is outside Article 10, derivative rights for the primary carer under Articles 24 or 25 WA cannot arise.

2.4 Derivative residence rights are residual: existing domestic leave makes WA rights redundant

Independently of the above grounds, the Court holds that even if Article 25(2) did apply in principle, it would not entitle the appellant to any further or different form of leave beyond what she already enjoys (paras 81–82).

The appellant has substantial Appendix FM leave and is on a secure route to ILR.
In Akinsanya, the Court of Appeal had held, in relation to Zambrano rights, that those rights are exceptional and residual; they arise only where there is no domestic or other EU right to reside.
Lord Justice Baker applies the same logic to education‑based derivative rights under Baumbast/Ibrahim/Teixeira: they are designed to ensure that a worker’s child can continue education “under the best possible conditions”, which may necessitate granting residence to the primary carer. But if the carer already has an adequate domestic immigration status, the child is in fact already educated under the “best possible conditions”; there is no functional gap for EU‑derived rights to fill (para 82).

Accordingly, derivative residence rights under Articles 24(2) and 25(2) WA, like Zambrano rights, are treated as contingent and residual, not as parallel or cumulative entitlements.

2.5 Outcome

On all three bases—(i) interpretive, (ii) personal scope, and (iii) residual character of derivative rights—the Court of Appeal held that the appellant was not entitled to settled status under the EUSS via Article 25(2) WA. The appeal was dismissed (para 83).

3. Precedents and Authorities Cited

3.1 Core EU law instruments

The judgment canvasses the key building blocks of EU free movement law:

Article 45 TFEU – freedom of movement for workers.
Article 49 TFEU – freedom of establishment for self‑employed persons.
Regulation 1612/68 (now Regulation 492/2011) – particularly Article 12 (now Article 10), granting children of workers access to education in the host State and requiring that they be able to attend under “the best possible conditions” (para 22).
Directive 2004/38/EC (“the Citizens’ Directive”) – setting a codified framework for rights of residence and permanent residence for Union citizens and their family members, with Article 12(3) preserving residence rights for children and the parent with actual custody after the Union citizen’s death or departure (para 28).

Crucially, Regulation 1612/68/Regulation 492/2011 applies to workers, not self‑employed persons (para 23), whereas Directive 2004/38 covers both workers and self‑employed in its general residence provisions (Article 7).

3.2 Baumbast and the genesis of education‑based derivative rights

In Baumbast and R (Case C‑413/99), the CJEU held that:

children of a migrant worker who had resided in the host State during the worker’s period of employment had a right to remain to complete their education under Article 12 Regulation 1612/68, even if the worker had ceased working and left the host State and even if the children were not themselves EU citizens (para 32 of the judgment; paras 31–33 in Baker LJ’s summary).
to give practical effect to this right, the parent who is the child’s primary carer must also be allowed to reside; otherwise, the child’s education right would be undermined (paras 71–75 of Baumbast, summarised at para 33 of the Court of Appeal’s judgment).

This was the foundation for education‑based derivative rights for primary carers: the carer’s right is derived from, and parasitic upon, the child’s directly effective EU right to education.

3.3 Ibrahim and Teixeira: autonomy and scope of the education right

In Ibrahim v Harrow LBC and Teixeira v Lambeth LBC (both decided in 2010), the CJEU elaborated on Baumbast:

Autonomy from Directive 2004/38: Article 12 of Regulation 1612/68 was held to apply independently of the Directive’s residence conditions (e.g. sufficient resources, comprehensive sickness insurance) (paras 35–37, esp. paras 42–50 of Ibrahim, quoted at para 36 of Baker LJ’s judgment).
This autonomy ensured that the integration of workers’ families, the aim of Regulation 1612/68, could not be undermined by subsequent legislative developments.
No requirement of self-sufficiency: the rights for the child and primary carer are not conditioned on having sufficient resources or health insurance; they are grounded directly in the objective of free movement for workers (para 37).
Continuation beyond majority: in Teixeira the Court held that the right of residence of a primary carer could extend beyond the child’s 18th birthday if the child still needs the parent’s presence to complete their education (para 38).

The Advocate General’s opinion in Teixeira emphasised that Directive 2004/38 did not itself contain a “free‑standing, comprehensive right of residence for the purpose of education” analogous to Article 12 of the Regulation. Article 12(3) of the Directive merely retains existing rights already acquired on another basis (para 39).

3.4 Czop and Punokova: no extension to self‑employed persons

In Secretary of State for Work and Pensions v Czop and Punokova (Case C‑147/11), the CJEU squarely addressed whether Article 12 Regulation 1612/68 applied to children of self‑employed persons. It held that (paras 30 and 33, summarised at para 44):

the wording “children of a national of a Member State who is or has been employed” was “clear and precise” and applied only to employed persons, not self‑employed;
there was no scope to interpret it as extending to children of self‑employed persons.

This decision is central in Ayoola. By virtue of Article 4(4) WA, which requires WA provisions referring to EU law to be interpreted consistently with pre‑transition CJEU case law, Czop acts as a strong constraint on how far Articles 24(2) and 25(2) WA can be read as extending education‑based rights.

3.5 Alarape: no route to permanent residence

In Alarape and Tijani (Case C‑529/11), the CJEU held that residence based solely on Article 12 Regulation 1612/68 (i.e. education‑based derivative rights) does not count towards the acquisition of a right of permanent residence under Directive 2004/38 (para 45 of Baker LJ’s judgment).

This underpins both the Upper Tribunal’s and the Court of Appeal’s acceptance that education‑based derivative rights under Article 24(2) WA are non‑permanent and do not themselves produce a right to permanent residence or settlement.

3.6 Zambrano and its domestic reception

Ruiz Zambrano (Case C‑34/09) is a landmark decision on rights derived from EU citizenship (Article 20 TFEU). The Court held that a third‑country national parent of an EU citizen child must be granted a right to reside and work in the child’s Member State of nationality where refusal would “deprive [the child] of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen” (para 41).

Domestically, in R (Akinsanya) v SSHD [2022] EWCA Civ 37, the Court of Appeal emphasised (para 50, summarised at para 50 of Baker LJ’s judgment) that:

Zambrano rights arise only where the carer has no domestic (or other EU) right to reside that would avert the compulsion on the EU citizen child to leave the Union;
they are “exceptional” and “indirect and contingent” rights, not typical Treaty rights.

Lord Justice Baker imports this logic into the context of education‑derived rights under Baumbast/Ibrahim/Teixeira, treating them in a similar residual fashion (paras 81–82).

3.7 Lounes: the effect of acquiring host State citizenship

In R (Lounes) v SSHD (Case C‑165/16), the CJEU held that:

a Union citizen who moved to another Member State and subsequently acquired that State’s nationality while retaining their original nationality could not rely on Directive 2004/38 for residence rights for a third‑country national spouse; but
such rights could be derived from Article 21(1) TFEU directly.

The Court of Appeal invokes Lounes by analogy (para 67), to underline that where an individual (such as O) has acquired British citizenship and now resides as a British national, the relevance of EU‑derived residence rights diminishes or disappears for the subsequent period.

3.8 Domestic cases: Hrabkova, Celik, Akinsanya, Velaj

Hrabkova v SSWP [2018] 1 CMLR 5 – confirms domestically that Czop precludes extending Regulation 492/2011 Article 10 rights to children of the self‑employed (para 49).
Celik v SSHD [2023] EWCA Civ 921 – provides the Court’s framework for analysing WA rights: identify the scope of EU law rights up to the end of transition, then examine how the WA continues (or not) those rights (paras 20–21).
Akinsanya – already discussed in relation to residual nature of Zambrano rights; its rationale is carried over to education‑based derivative rights (para 81).
Velaj v SSHD [2022] EWCA Civ 767 – concerned Zambrano rights as implemented in regulation 16(5) of the 2016 EEA Regulations. Andrews LJ emphasised that the “unable to reside in the UK” test requires a fact‑specific, realistic analysis (para 51). Baker LJ cites Velaj in support of a factual, practical approach to whether EU‑derived rights add anything where strong domestic leave already exists (para 81).

4. The Court’s Legal Reasoning

4.1 The Withdrawal Agreement framework

Part Two WA (Citizens’ Rights) is designed to secure, on a reciprocal basis, the residence and associated rights of EU citizens and UK nationals (and their family members) who exercised free movement rights before the end of the transition period and continue to do so thereafter (preamble and Article 10).

Two provisions are particularly important:

Article 4(1): WA provisions and the Union law they make applicable produce the same legal effects in the UK as they do in the EU; provisions with direct effect can be relied on by individuals.
Article 4(4): WA provisions referring to Union law must be interpreted “in conformity with the relevant case law of the Court of Justice of the European Union handed down before the end of the transition period.”

Title II WA deals with “Rights and Obligations”. Within it:

Article 13 WA continues residence rights under Directive 2004/38 (including Article 12(3) retention rights where the Union citizen has died or departed).
Articles 24 and 25 WA sit in Chapter 2 (“Rights of workers and self-employed persons”), structuring the post‑Brexit continuation of specific worker‑ and self‑employed‑based rights.

The Court’s methodology, borrowing from Celik, is:

identify the underlying EU law rights that existed pre‑Brexit; then
interpret the WA provisions as mechanisms that continue or preserve those rights, rather than as freestanding sources of new rights.

4.2 Article 24(2) WA: preserving Article 12(3) Directive rights in the context of workers

Article 24(1) WA re‑states the classic rights of workers and their children under Article 45 TFEU and Regulation 492/2011, including:

non‑discrimination, employment and social advantages; and
the right of the worker’s children to be admitted to education under the same conditions as nationals (Article 24(1)(h)).

Article 24(2) then provides:

“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 Court views this as effectively transplanting, into the post‑Brexit framework, the same subset of rights that Article 12(3) of Directive 2004/38 had preserved: the right of a child and the custodial parent to remain after the worker has left or died (paras 71–73).

Key points in the Court’s reasoning:

Article 12(3) is preservative, not creative: it states that the Union citizen’s death or departure “shall not entail loss of the right of residence” for the children or the parent with actual custody. It presupposes an existing right (via Article 7 or Article 12 of the Regulation) and merely prevents its extinguishment (para 72).
Article 24(2), although framed as “shall have the right to reside”, must be read in this historical and structural context: it is aimed at ensuring continuity of rights already acquired by reference to a worker’s residence in the host State (para 73).
The location of Article 24(2) in Chapter 2 (“Rights of workers”) reinforces that it is parasitic on the earlier worker‑based rights rather than a universal family‑life‑based entitlement.

Thus Article 24(2) does not, for instance, create an autonomous right for any primary carer of a child in education; it only preserves rights flowing from a child’s earlier status as the child of a worker exercising free movement rights in the host State.

4.3 Article 25(2) WA: extension to self-employed, but still only preserving pre-existing rights

Article 25(1) WA gives self‑employed persons the rights guaranteed by Articles 49 and 55 TFEU and, somewhat awkwardly, also refers to the rights set out in Article 24(1)(c)–(h). The Court notes that some of these (notably 24(1)(h), education rights) are not obviously grounded in Articles 49 and 55 TFEU, but leaves the interpretation of Article 25(1)(b) open as it is not necessary to decide the appeal (para 74).

Article 25(2) states simply:

“Article 24(2) shall apply to direct descendants of self-employed workers.”

The appellant argued that this is a clear, forward‑looking provision which now creates for children of self‑employed persons (and their carers) the same rights as children of workers had enjoyed under Baumbast, Ibrahim and Teixeira.

Lord Justice Baker rejects that interpretation for two main reasons:

The Article 4(4) WA constraint (para 76). Article 25(2) refers to Article 24(2), which itself refers implicitly to the worker‑based EU law framework. Under Article 4(4) WA, any such reference must be interpreted “in conformity with” pre‑transition CJEU case law. That includes Czop, which held that education rights under Article 12/Article 10 Reg 492/2011 did not extend to children of self‑employed persons. Therefore, Article 25(2) cannot be read as legislatively overturning Czop; at most it preserves EU law rights to the extent that such rights existed.
The Commission’s Guidance Note (para 77). The Guidance Note is cited as confirming that Article 25(2) “protects children whose EU or UK parent was a worker, but who has ceased to reside lawfully in the host State of the child as per Article 24(2) of the Agreement, to the extent provided for by EU law as interpreted by the CJEU (Case C‑147/11 Czop & Punakova).” Although the quotation is not perfectly aligned with the Article’s wording, the Court takes it as supporting the view that Article 25(2) is a continuity provision, not a vehicle for expanding substantive EU law rights beyond the Czop boundary.

Accordingly, the Court treats Article 25(2) as preserving whatever education‑based rights existed in EU law for descendants of those who exercised treaty rights as self‑employed – but only insofar as EU law itself recognised such rights. In light of Czop (and its domestic confirmation in Hrabkova), there are in practice no Baumbast/Ibrahim/Teixeira-type rights for primary carers of children of self‑employed persons.

4.4 The personal scope problem: Article 10 WA

Even if Article 25(2) were read more generously, it could only apply to persons within the personal scope of Part Two WA (Article 10).

For O to confer derivative rights, she must be:

a “family member” within Article 9(a)(i) WA (satisfied – she is the direct descendant of the spouse of an EEA national); and
someone who fits within Article 10(1)(e) or (f) WA.

The Court finds she meets neither (para 80):

Article 10(1)(e): This requires that the Union citizen (C) comes within 10(1)(a) (i.e. exercised a right to reside in the UK in accordance with EU law before the end of the transition period and continues to reside thereafter), and that the family member resided in the host State before the end of the transition period and continues afterward. Here, C was no longer residing in the UK by the end of the transition period. Thus O cannot be a qualifying family member for Part Two purposes through Article 10(1)(e).
Article 10(1)(f): This covers family members who resided in the host State “in accordance with Articles 12 and 13, Article 16(2) and Articles 17 and 18 of Directive 2004/38/EC before the end of the transition period and continue to reside there thereafter.” Although O had previously benefited from Article 12(3) rights, by the end of the transition period she was residing as a British citizen. Her residence no longer had any EU law character. Thus she is outside this category too.

If O is not within Article 10, no Title II WA right—including Article 25(2)—can be derived from her status.

4.5 The residual character of derivative rights and the relevance of existing domestic leave

Finally, the Court reasons that even if one were to assume in the appellant’s favour that Article 25(2) applied and that she and O were within the personal scope of the WA, that would still not entitle her to any additional benefit beyond the Appendix FM leave she already holds (paras 81–82).

The reasoning proceeds in three stages:

Analogy with Zambrano rights (para 81). Drawing on Akinsanya, the Court notes that:
- Zambrano rights arise only “indirectly and contingently” to avoid an EU citizen being forced to leave the territory of the Union.
- They do not operate where domestic or other EU law already provides an adequate right to reside or to work; in such situations “the Zambrano circumstances do not obtain.”
Transposition to education‑based derivative rights (paras 81–82). The Court treats the rights derived from Baumbast, Ibrahim and Teixeira as similarly contingent. Their function is to ensure that the child of a worker can complete education under the “best possible conditions”, which effectively requires that the primary carer be allowed to reside if otherwise they would have to depart.
Application to this case (paras 81–82). O is both:
- a British citizen, and
- the child of a primary carer (the appellant) who has secure and renewable leave under Appendix FM with a realistic route to ILR.
As such, she is already in a position to pursue her education in the UK under conditions equivalent to those of any other British child. There is no threat that she would have to leave, or that her carer would be removed, such as to undermine the educational rights that the EU‑derived provisions are designed to protect. Granting additional rights under Article 25(2) would add nothing substantive.

This approach aligns closely with the Upper Tribunal’s view that Appendix FM leave was “more advantageous” and more secure than any precarious Article 24(2)/25(2) derivative right reliant on the child’s remaining in education (UT para 50, endorsed conceptually in para 81).

In short, derivative residence rights under the Withdrawal Agreement are residual safety nets, not alternative routes to settlement that sit alongside domestic family migration routes.

5. Impact and Significance

5.1 Clarification of Articles 24(2) and 25(2) WA

The most important doctrinal contribution of Ayoola is to settle, at Court of Appeal level, the nature and scope of Articles 24(2) and 25(2) WA:

They are preservative provisions, ensuring continuity of certain pre‑existing EU education‑based rights, rather than creating new, freestanding post‑Brexit residence rights.
Article 25(2) does not overturn Czop or Hrabkova; it must be read in conforming fashion with that case law, such that there remain no Ibrahim/Teixeira-style rights for children of self‑employed persons.

This has immediate implications for EUSS litigation: attempts to construct novel rights for primary carers of children of former self‑employed EEA nationals by relying on Article 25(2) WA are, in light of this judgment, very likely to fail.

5.2 The importance of Article 10 WA (personal scope)

Ayoola underlines that personal scope under Article 10 WA is a gatekeeping issue. Even where a person once held EU‑derived residence rights (e.g. as a child with retained rights of residence), those rights may not carry forward into the WA regime if:

the relevant Union citizen is no longer resident in the host State at the end of the transition period; or
the individual has, by that date, ceased to reside as a family member and instead resides by virtue of a different status (such as naturalisation as a British citizen).

The case thus illustrates how conversion of status—here, O’s acquisition of British citizenship—can, over time, sever the link to EU free movement rights for WA purposes, even if earlier EU rights had been acquired.

5.3 Residual character of derivative rights and interaction with domestic leave

The decision reinforces a pattern, already visible in Akinsanya and Velaj:

EU‑derived derivative residence rights (whether Zambrano or Ibrahim/Teixeira) are not intended to duplicate or compete with domestic immigration routes; they operate only where necessary to prevent the practical nullification of a child’s EU rights.
Where domestic immigration law (e.g. Appendix FM) already allows the primary carer to remain on a stable route to settlement, there is no lacuna in protection; derivative rights will typically not arise.

For practitioners, this means that:

In cases where a third‑country national carer already has Appendix FM leave with a realistic route to ILR, arguments based on Articles 24(2) or 25(2) WA are unlikely to succeed, absent some unusual factual matrix where domestic leave is tenuous or at risk.
Strategically, focus may need to shift to strengthening domestic applications under Appendix FM and related provisions, rather than seeking WA‑based EUSS status purely as a more advantageous form of leave.

5.4 Limited room for creativity in interpreting the Withdrawal Agreement

The judgment exemplifies the Court’s generally cautious approach to the WA:

Article 4(4) WA acts as a brake on expansive interpretations: references to Union law must be aligned with pre‑transition CJEU case law, including cases like Czop that limit the reach of rights.
While the WA is a new treaty, the Court is reluctant to treat it as an opportunity to rewrite or improve on substantive EU law. Its function is to preserve existing rights in a new bilateral framework, not to create enhanced rights for particular groups.

That interpretive stance will likely shape future WA case law across other Articles in Part Two.

5.5 Consequences for primary carers of British citizen children with EU law histories

For individuals in situations analogous to the appellant—third‑country national parents of British children whose early residence in the UK was linked to an EU national—the case sends a clear message:

Once the child is British and the carer holds robust domestic leave, EU‑derived rights under the WA will rarely add anything of substance.
Arguments that WA derivative rights should produce a more favourable status (e.g. settled status under EUSS versus limited leave under Appendix FM) are unlikely to be upheld where domestic routes already ensure continuity of residence.

This may disappoint some appellants who hoped that the EUSS could provide a quicker or more secure route to settlement than lengthy domestic routes. The Court effectively affirms the policy design whereby the EUSS is primarily for those whose position is directly and currently grounded in EU free movement rights as crystallised at the end of the transition period.

6. Complex Concepts Simplified

6.1 “Derivative rights” and education‑based residence

A derivative right of residence is a right that a person (usually a non‑EU family member) enjoys not in their own right, but because it is necessary to give effect to the EU rights of someone else (often an EU citizen child or worker).

In the education context:

The child of an EU worker has a direct EU right to access education in the host State under Article 12 Regulation 1612/68 / Article 10 Regulation 492/2011.
To make this right effective, the CJEU in Baumbast and later cases recognised that the child’s primary carer (often a third‑country national parent) must be allowed to live with the child so that the child can genuinely continue and complete education “under the best possible conditions”.
This produces a derivative residence right for the carer, contingent on and limited by the child’s educational situation.

6.2 Zambrano carers versus Ibrahim/Teixeira carers

There are two distinct, though sometimes overlapping, lines of derivative rights:

Zambrano carers:
- based on Article 20 TFEU (EU citizenship itself);
- apply where an EU citizen (often a child) would effectively be forced to leave the EU if their third‑country national carer were removed;
- are exceptional and only arise where there is no other realistic way for the child to remain in the EU with their carer.
Ibrahim/Teixeira carers:
- based on Article 12 Regulation 1612/68 / Article 10 Regulation 492/2011 and the CJEU’s case law;
- apply where the child of a worker has entered the host State’s education system and seeks to continue education even after the worker leaves or ceases work;
- justify granting residence to the primary carer to uphold the child’s right to complete education.

Ayoola treats both categories as residual safety nets: they come into play only when domestic or other EU law does not already provide a sufficient basis for the carer to remain.

6.3 Workers versus self‑employed in EU law

EU law distinguishes:

“Workers” – persons who perform services for and under the direction of another in return for remuneration (employees). Their rights are grounded in Article 45 TFEU and historically in Regulation 1612/68 / Regulation 492/2011.
Self‑employed persons – those who pursue an economic activity on their own account, under Article 49 TFEU (freedom of establishment).

Some EU instruments (such as Directive 2004/38) cover both workers and self‑employed persons together. But Regulation 1612/68 / Regulation 492/2011, and particularly the education provision (Article 12 / Article 10), apply only to workers and their children. Czop confirms that they do not extend to children of self‑employed persons.

6.4 Appendix FM and the “ten‑year route to settlement”

Appendix FM of the UK Immigration Rules governs family migration. A person granted leave under Appendix FM on the basis of their relationship with a child or partner is typically placed on a five‑year or ten‑year route to settlement:

On a ten‑year route, the individual must complete a sequence of limited leave grants totalling 120 months before becoming eligible to apply for ILR.
Such leave can be renewed if the underlying family relationships and other requirements (e.g. suitability, financial) continue to be met.

In Ayoola, the appellant was on a ten‑year route to settlement based on her caring role for O. The Court regarded this domestic path as stable and more beneficial overall than any precarious WA derivative right tied strictly to the child’s continuing education (UT para 50; CA para 81).

6.5 The Withdrawal Agreement’s “personal scope” (Article 10)

Article 10 WA determines who is covered by the citizens’ rights provisions:

It includes EU citizens and UK nationals who exercised free movement rights before the end of the transition period and continue to reside thereafter.
It also includes their qualifying “family members” (spouses, partners, children, certain dependent relatives) if they met specific conditions and timelines.

Being within Article 10 is a precondition for relying on residence rights in Part Two of the WA (including Articles 13, 24 and 25). In Ayoola, O’s change of status from EU family member to British citizen by the relevant date meant she had slipped outside this scope.

7. Conclusion

Ayoola v SSHD is a careful, structurally coherent decision that accomplishes three main things:

It confirms that Articles 24(2) and 25(2) WA are preservative, not creative.
Article 24(2) perpetuates, in the post‑Brexit context, the subset of rights that Article 12(3) of Directive 2004/38 had retained for children of workers and their primary carers. Article 25(2) does not overturn Czop but must be read in conformity with it; it therefore does not generate new Ibrahim/Teixeira-type rights for descendants of self‑employed persons.
It underscores the centrality of Article 10 WA personal scope.
Former EU family members who have become British citizens or whose Union citizen sponsor has left the host State by the end of the transition period may no longer fall within the personal scope of Part Two WA, and thus cannot derive rights under Articles 24 or 25.
It reinforces the residual nature of EU‑derived derivative rights relative to domestic immigration leave.
Following the logic of Akinsanya and Velaj, Lord Justice Baker holds that education‑based derivative rights under Baumbast/Ibrahim/Teixeira – and their WA analogues – arise only to prevent the undermining of a child’s EU rights where no adequate domestic status exists. Where robust leave under Appendix FM (or similar) is already in place, WA‑based derivative rights add nothing.

In practical terms, the judgment narrows the potential for creative reliance on Articles 24(2) and 25(2) WA in EUSS and related litigation, particularly for carers of British children whose original EU connections flowed from self‑employed sponsors. It firmly situates the Withdrawal Agreement as a mechanism of continuity and preservation of pre‑existing EU rights, not as an instrument for extending or upgrading rights beyond those recognised by the CJEU before the end of the transition period.

For lawyers and advisers, Ayoola provides a clear template: before advancing WA‑based derivative rights arguments, one must verify:

that the claimant and the relevant EU citizen or family member fall within Article 10 WA at the end of the transition period;
that the asserted right corresponds to a right already recognised in EU law, as interpreted by the CJEU before that date; and
that there is no robust domestic immigration status already ensuring the child’s position in the UK.

Absent those elements, the courts are likely to take the same view as in Ayoola: the Withdrawal Agreement cannot be used to manufacture new rights or secure a more advantageous immigration status where EU law never granted such rights, or where domestic law already fully protects the individual’s residence.