Preserving Zambrano Carers’ Entry Rights: Ahmad v Secretary of State for the Home Department
([2025] EWCA Civ 829)

Introduction

Ahmad v Secretary of State for the Home Department consolidates two linked appeals (Mrs Ahmad and Mr Rafiu) and addresses whether the United Kingdom immigration authorities retain power to grant EEA family permits—specifically the Zambrano “primary-carer” route—where an application was lodged before 31 December 2020 (the end of the Transition Period) but was determined after that date, notwithstanding that Regulation 16 of the Immigration (European Economic Area) Regulations 2016 (“2016 Regulations”) had been revoked.

The core dispute centred on the correct construction of the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020 (“Transitional Regulations”), Schedule 3.

Summary of the Judgment

• Power to grant remains: The Court of Appeal held that Schedule 3 of the Transitional Regulations does continue Regulations 11 and 12 of the 2016 Regulations for the purpose of deciding pre-transition EEA family-permit applications; therefore Entry Clearance Officers (ECOs) retain jurisdiction to grant a permit to a Zambrano carer even though Regulation 16 itself is revoked.
• Mrs Ahmad: Her appeal succeeded; the matter is remitted to the First-tier Tribunal (FTT) to decide whether she (a) made a valid primary-carer application and (b) satisfies Reg. 11(5)(e).
• Mr Rafiu: The Secretary of State’s challenge failed. The Upper Tribunal (UT) had been entitled to allow his appeal and those of his children.
• Key Holding: The Court rejects the Secretary of State’s contention that “admission” under Reg. 11 is valueless without a contemporaneous “right to reside” under Reg. 16. Schedule 3’s plain wording prevails.

Analysis

Precedents Cited and Their Influence

• Ruiz Zambrano (C-34/09) [2012] QB 265 – Origin of the “Zambrano right”: EU law prohibits forcing a Union-citizen child to leave the EU by removing their third-country primary carer. The Court of Appeal draws on Zambrano solely to explain the derivative right that Reg. 16(5) transposed.
• Celik v SSHD [2023] EWCA Civ 921 – Describes the Withdrawal Agreement architecture and the gap for Zambrano carers. Demonstrates that such carers are not protected by the Agreement, underscoring the need for domestic savings.
• Rexhaj v SSHD [2024] EWCA Civ 784 – Summarises the purpose of the EU Settlement Scheme (“EUSS”) and Article 18 WA. Referenced to stress that EUSS and Transitional Regulations operate independently.
• Singh v Dass [2019] EWCA Civ 360; Notting Hill Finance Ltd v Sheikh [2019] EWCA Civ 1337 – Relied on in ruling that the Secretary of State could not raise new factual points for the first time in the Court of Appeal (re: definition of “primary carer”).

Legal Reasoning

1. Textual Approach: Paragraph 3 of Schedule 3 expressly says Reg. 12 “continues to apply… for considering, and where appropriate granting” a pre-transition application. Paragraphs 4 and 6 likewise preserve Reg. 11. The court stresses that Reg. 11(5)(e) incorporates the Reg. 16(5) criteria by reference; the physical preservation of Reg. 16 is therefore unnecessary.
2. Purpose: The evident objective was to avoid “procedural limbo” for applicants who relied on still-extant EU-law rights when they filed. Cutting off the entry mechanism mid-stream would defeat that purpose.
3. Separate Legislative Schemes: The court rebuffs the Secretary of State’s attempt to weld the Transitional Regulations to the Application Regulations (which concern EUSS/WA). They stem from different enabling powers and cater to different cohorts.
4. Practical Consequence Not Determinative: The absence of immediate residence leave post-entry does not negate the statutory command to grant a permit once the admission criteria are satisfied. Post-entry stay can be managed by other mechanisms (e.g. leave outside the Rules, concessions, human-rights applications).
5. Fair Procedure: In the Rafiu strand, the Secretary of State could not introduce fresh arguments (e.g. step-parent not a “direct relative”) that would have required new evidence and altered the Tribunal hearing below.

Likely Impact of the Decision

• Immediate Administrative Consequences: ECOs and caseworkers must recognise jurisdiction to process and, where criteria are met, grant outstanding Zambrano EEA family-permit applications lodged on or before 31 Dec 2020, even if undecided years later.
• Litigation Ripple: Applicants whose permits were refused or considered invalid for want of Reg. 16 may seek reconsideration or revive appeals.
• Residence-Leave Gap: The ruling creates pressure on the Home Office to devise or formalise a pathway from entry clearance to domestic leave to remain for successful Zambrano entrants (mirroring the October 2021 concession).
• Statutory Construction Guidance: Courts will read post-Brexit savings instruments in line with their express wording, resisting policy arguments that conflict with clear text.
• Zambrano Jurisprudence Post-Brexit: Although EU-law foundations no longer apply, Zambrano concepts survive domestically where expressly saved. This case is likely to be a citation cornerstone for any future question on the residual operation of the 2016 Regulations.

Complex Concepts Simplified

• Zambrano Carer: A non-EU parent or guardian whose removal would force their British-citizen child to leave the UK, thereby depriving the child of EU citizenship rights.
• EEA Family Permit: Pre-Brexit entry document allowing non-EEA family members (including Zambrano carers) to enter the UK under EU free-movement rules.
• Regulation 11 vs Regulation 16: Reg. 11 confers a right of admission; Reg. 16 confers an ensuing right to reside. Admission is the “front door”, residence is the “stay”.
• Transitional Regulations vs Application Regulations: The former preserve certain EU-law mechanisms for pre-transition applications only; the latter relate to the EU Settlement Scheme and Withdrawal Agreement grace-period protections.
• “Commencement Day” / “IP Completion Day”: 11 p.m. on 31 December 2020, the moment at which the 2016 Regulations were revoked.

Conclusion

Ahmad v SSHD is the leading authority on how far the UK’s savings legislation protects Zambrano carers who filed for EEA family permits before the Brexit transition ended. The Court of Appeal’s textual-and-purposive reading confirms that Regulation 11 (admission) and Regulation 12 (issue of permit) survive for those historical applications, irrespective of the revocation of Regulation 16 and regardless of the EU Settlement Scheme.

Tribunals must therefore:

• Identify whether a valid primary-carer application was lodged by 31 December 2020; and
• Apply the Reg. 11(5)(e) test without insisting on a live Reg. 16 right.

For practitioners, the decision revives a narrow yet significant gateway for clients caught in the Brexit “in-flight” cohort and provides a template for statutory-construction arguments in the post-EU immigration landscape.