Ahmad v Secretary of State for the Home Department

Factual and Procedural Background

These appeals concern applications for EEA family permits under the Immigration (European Economic Area Regulations) 2016 ("the 2016 Regulations") by persons seeking admission to the United Kingdom as primary carers of British national children. The applications were made before the end of the transitional period following the United Kingdom's departure from the European Union, which ended at 11 p.m. on 31 December 2020, when EU law and the 2016 Regulations still applied. However, the applications were determined after the transitional period, at which time the relevant EU law had ceased to apply and the 2016 Regulations had been revoked. The Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020 ("the Transitional Regulations") were enacted to address this situation. The central question is the proper interpretation of the Transitional Regulations in this context.

In the first appeal, the Appellant, a Pakistani national residing in Pakistan with British national children, contended that she made a valid application under the 2016 Regulations as the primary carer of British national children. Her application was refused on the basis of dependency on her Irish national eldest son, without consideration of her primary carer status. The First-tier Tribunal did not consider the primary carer ground, and the Upper Tribunal dismissed her appeal, holding that the primary carer issue was a new matter not previously raised.

In the second appeal, the Appellee, a Nigerian national, applied for an EEA family permit as the primary carer of a British national child. Her husband and his children also applied for permits. The applications were refused by an entry clearance officer. The First-tier Tribunal allowed the mother's appeal but dismissed the husband's and his children's appeals. The Upper Tribunal allowed the husband's and his children's appeals, finding they qualified under the 2016 Regulations. The Secretary of State appealed on grounds including the revocation of regulation 16 and alleged failures to consider primary carer status and related factors.

Legal Issues Presented

1. Whether the Secretary of State had power under the Transitional Regulations to grant an EEA family permit to a person as a primary carer of a British national when the application was made before but determined after the end of the transitional period.
2. Whether the First-tier Tribunal erred by failing to consider the Appellant's claim that she was entitled to an EEA family permit as a primary carer of British national children, and if so, whether this Court could determine the validity and facts of such an application.
3. Whether the Upper Tribunal erred in failing to consider the meaning of "primary carer" and whether it properly assessed if the British national child would be unable to reside in the UK if the Appellee was not admitted.

Arguments of the Parties

Secretary of State's Arguments

• Entry clearance officers lacked power to grant EEA family permits based on primary carer status after the transitional period ended because regulation 16(5) of the 2016 Regulations (providing the right to reside) had been revoked.
• The right to admission under regulation 11 had no substance without a corresponding right to reside, which was absent post-transitional period.
• The Transitional Regulations and the Application Regulations must be read together, and only those with a continued right to reside under the Application Regulations could have permits granted under the Transitional Regulations.
• The Appellee in the second appeal was not a "direct relative" or legal guardian as required to be a primary carer under regulation 16(8), and this issue had not been raised previously before the courts.

Advocate to the Court and Appellants' Arguments

• The Transitional Regulations continue to apply regulation 12 of the 2016 Regulations for considering and granting EEA family permits made before the end of the transitional period.
• The reference in regulation 11(5)(e) to regulation 16(5) is a criterion for admission and does not require regulation 16 to be in force at the time of determination.
• The purpose of the Transitional Regulations is to ensure valid applications made before the end of the transitional period are considered and, if appropriate, granted, even if determined after the transitional period.
• The Appellant in the first appeal contended she made a valid application as a primary carer by letter uploaded to the Home Office website and was entitled to have the First-tier Tribunal consider this ground.
• The Appellee in the second appeal contended that the Upper Tribunal correctly found he and his children met the criteria to be admitted as primary carers within a family unit.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court's primary task was to interpret the Transitional Regulations, which apply to applications made before the end of the transitional period but determined after it. The Court noted that the Transitional Regulations explicitly continue the application of regulation 12 of the 2016 Regulations for considering and granting EEA family permits in such cases. Regulation 12 mandates the issuance of an EEA family permit if the applicant meets the criteria in regulation 11(5), which references regulation 16(5) to identify primary carers of British national children entitled to reside in the UK.

The Court emphasized that the reference to regulation 16(5) in regulation 11(5)(e) is a descriptive criterion and does not require regulation 16 to remain in force at the time of application determination. The Transitional Regulations do not include regulation 16 among the provisions continued in force, but they do continue regulation 11 and 12, creating a mechanism for admission decisions based on criteria identified by regulation 16(5).

The Court rejected the Secretary of State's submission that the Transitional Regulations must be read with the Application Regulations to limit eligibility to those with continued residence rights under the latter. The Court found that the two sets of regulations operate under different statutory powers and address different application types. The Transitional Regulations govern applications made before the transitional period's end, while the Application Regulations govern new residence status applications within the grace period after the transitional period.

Regarding Mrs Ahmad's appeal, the Court found that the First-tier Tribunal erred by failing to consider whether she had made a valid application as a primary carer and whether she met the criteria for an EEA family permit on that basis. The Upper Tribunal did not address this error. The Court held that it was not in a position to determine the factual or legal validity of Mrs Ahmad's claim and therefore remitted the matter to the First-tier Tribunal for determination.

In Mr Rafiu's case, the Court addressed the Secretary of State's attempt to raise, for the first time on appeal, the issue of whether Mr Rafiu qualified as a "primary carer" under the definition requiring being a direct relative or legal guardian. The Court declined to allow this new point, noting it was not raised below and would have required new evidence and a different hearing. The Court upheld the Upper Tribunal's decision that Mr Rafiu and his children qualified for admission under the 2016 Regulations and found no error in the Upper Tribunal's consideration of whether the British national child would be unable to reside in the UK without Mr Rafiu's admission.

Holding and Implications

The Court ALLOWED the appeal of the Appellant in the first case and DISMISSED the appeal of the Secretary of State in the second case.

The Court held that the Transitional Regulations do provide for the consideration and grant of valid applications for EEA family permits made before the end of the transitional period but determined after it, including for primary carers of British national children meeting the criteria in regulation 11(5)(e) of the 2016 Regulations.

Mrs Ahmad is entitled to have the First-tier Tribunal determine whether she made a valid application as a primary carer and whether she meets the criteria for an EEA family permit. In Mr Rafiu's case, the Upper Tribunal correctly concluded that he and his children met the relevant criteria, and the Secretary of State's late-raised arguments were not permitted.

No new precedent was established beyond the interpretation of the Transitional Regulations in this specific context. The decision clarifies the application of the Transitional Regulations to pending EEA family permit applications involving primary carers of British national children.