Court of Appeal — Summary of Opinion

Factual and Procedural Background

This appeal concerns the interpretation of Articles 24 and 25 of the Withdrawal Agreement. The Appellant is a national of a non-EU country who entered the United Kingdom in 2005, overstaying an initial visit. She had a child ("Child") in 2009 with a man ("Father"). Father later married a Union citizen ("Union Citizen"), who was self-employed in the UK as a hairdresser. Residence cards were issued to Child and Father in 2010 under the domestic implementation of EU free movement rules. Father and Union Citizen subsequently divorced and, in February 2015, Child was issued a further residence card on the basis of retained rights; on 31 July 2015 Child was naturalised as a British citizen.

The Appellant was granted limited leave to remain under Appendix FM (initially in November 2016) on account of her role as Child's primary carer; that leave has been renewed on multiple occasions and, at the time of the hearing, extended into 2028. On 29 December 2020 the Appellant applied for settled status under the EU Settlement Scheme (EUSS), initially relying upon Zambrano-type grounds and also on derivative rights connected to Child's education. The Secretary of State refused the EUSS application on two principal grounds: (1) Zambrano applicants must not already hold leave to remain (which the Appellant did), and (2) on the facts there was no realistic prospect that Child would be unable to reside in the UK such that a Zambrano right arose.

The Appellant appealed. The First-tier Tribunal allowed the appeal on 9 March 2022, but the Upper Tribunal allowed the Secretary of State's appeal and remade the decision. The Upper Tribunal dismissed the Appellant's appeal in March 2024. Permission to appeal to this Court was granted on two grounds: (a) whether the Article 24(2) issue was a "new matter" under the 2020 Regulations, and (b) whether the Appellant had a right to reside under Article 24(2). By the time of the Court of Appeal hearing the parties had shifted focus and the Appellant sought to rely on Article 25(2) (as read with Article 24(2)). The Secretary of State conceded that the Article 24(2) point was not a "new matter" but maintained that Article 25(2) could not assist for multiple reasons explained below.

Legal Issues Presented

1. How should Articles 24(2) and 25(2) of the Withdrawal Agreement be interpreted in relation to rights of residence for primary carers of direct descendants in education?
2. Whether Article 24(2) (and, by extension, Article 25(2)) preserves pre-existing EU-derived rights (as recognised in CJEU case law) or instead creates standalone new rights.
3. Whether the Appellant, on the facts (including Child's British citizenship and the Appellant's existing domestic leave), is entitled to a right to reside under Article 24(2) or Article 25(2) of the Withdrawal Agreement.

Arguments of the Parties

Appellant's Arguments

• The plain wording of Articles 24(2) and 25(2) is clear and should not be narrowly interpreted in light of prior CJEU reasoning; Article 25(2) applies to direct descendants of self-employed workers and thus to the Appellant's circumstances.
• Articles 24(2) and 25(2) reflect Article 12(3) of Directive 2004/38 (preserving rights connected to education) rather than merely the derivative rights recognised by Baumbast, Ibrahim and Teixeira; reliance on those CJEU-derived rights is not necessary.
• EU law rights can co-exist with domestic leave; therefore the Appellant's existing leave under Appendix FM does not preclude recognition of an Article 25(2) right.
• Child's British citizenship is irrelevant because neither Article 12(3) of the Directive nor Article 25(2) specify any nationality requirement for the child.
• There is no requirement for the primary carer to prove that the child's education would be lost in the Appellant's absence (distinguishing these provisions from the Zambrano test, which requires a showing that the child would be compelled to leave the territory).

Respondent's (Secretary of State's) Arguments

• The Article 24(2) point had originally been advanced as a "new matter" under the 2020 Regulations and the tribunal could not entertain it without the Secretary of State's consent (although that concession was later withdrawn as unnecessary for this Court).
• Article 25(2) cannot assist because it must be read as preserving pre-existing EU rights; CJEU case law (notably Czop) establishes that Ibrahim/Teixeira derivative rights do not arise where the relevant parent was self-employed.
• Any right under Article 25(2) depends on the position at the end of the transition period; by that time Child was a British citizen and so could not have the EU-derived rights that Article 25(2) would preserve.
• The Appellant already holds domestic leave to remain under Appendix FM; even if Article 25(2) could theoretically apply, it would not provide the Appellant with a materially better immigration status than she already enjoys.
• Article 25(2) is a backstop preserving rights that derived from EU law and should not be read as creating new standalone entitlements independent of the case law of the CJEU in existence at the end of the transition period.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court's analysis proceeded from the premise that the Withdrawal Agreement must be interpreted in accordance with Union law and with the relevant CJEU case law handed down before the end of the transition period.

The Court construed Article 24(2) as a provision that preserves, rather than creates, the category of derivative rights that existed under EU law (principally those recognised in Baumbast, Ibrahim and Teixeira) for primary carers of direct descendants who are in education. That construction rests on the textual context (Article 24 sits in the chapter preserving worker rights and expressly refers to Regulation 492/2011) and on Article 4(4) of the Withdrawal Agreement which requires conformity with CJEU case law as at the transition end.

Article 25(2), providing that "Article 24(2) shall apply to direct descendants of self‑employed workers", was examined next. The Court rejected the view that Article 25(2) creates a new, broader right for the children of self‑employed persons regardless of prior EU law. Instead, Article 25(2) must be interpreted to preserve only those rights which were recognised under EU law at the end of the transition period. Because CJEU authority (notably Czop) establishes that Article 12 derivative rights did not extend to children of self‑employed parents, Article 25(2) cannot be read as converting that position.

The Court then applied those interpretive conclusions to the factual matrix:

• First, the Appellant did not possess the sort of pre‑existing derivative rights under Ibrahim/Teixeira that Article 24(2) preserves, because the Union Citizen in the chain was self‑employed and Czop precluded extension of Article 12 rights to the self‑employed context.
• Second, the Child was outside the personal scope of Part II of the Withdrawal Agreement at the relevant reference point (the end of the transition period) because Child had become a British citizen by then; accordingly any EU‑derived rights as a child of a migrant worker were not in point for preservation under the Agreement.
• Third, even if the Appellant could, in principle, have been within Article 25(2)'s preserved class, the Appellant already had domestic leave to remain under Appendix FM. Drawing on the same policy reasons that limit the application of Zambrano, the Court held it sensible to treat education‑related derivative rights as operating only where the carer lacks domestic rights: those derivative rights are contingent and serve to prevent compulsion to leave the EU, not to improve an already adequate immigration status.

The Court therefore concluded that Article 25(2) afforded no benefit to the Appellant on the facts before it.

Holding and Implications

Holding: The appeal is dismissed. The Court concluded that Article 24(2) of the Withdrawal Agreement should be interpreted as preserving pre‑existing EU‑derived rights (as recognised by the CJEU before the end of the transition period) rather than as creating new standalone rights, and that Article 25(2) must be read in conformity with the CJEU's case law (notably Czop). On the facts of this case Article 25(2) provides no right of residence to the Appellant.

Implications:

• The Court's interpretation emphasises that Articles 24(2) and 25(2) operate as preservations of rights existing under EU law at the end of the transition period and must be read in conformity with pre‑transition CJEU case law.
• Article 25(2) does not operate to overturn the CJEU's prior rulings that derivative education‑based residence rights under Article 12 of Regulation 1612/68 do not extend to children of self‑employed parents; accordingly Article 25(2) does not create a new category of entitlement for such cases.
• Where a primary carer already enjoys domestic rights to reside (for example under Appendix FM), preserved derivative rights of the type recognised in Baumbast/Ibrahim/Teixeira will not, on ordinary principles, provide additional or better immigration status; such derivative rights are properly seen as contingent protections where no domestic right exists.
• No broader new precedent was created: the Court applied and reconciled the Withdrawal Agreement with existing CJEU authority and domestic case law to resolve the appeal on the specific facts presented.

Panel: Judge Baker, Judge Zacaroli, Judge Newey.

Counsel: Attorney Jafferji and Attorney Broachwalla for the Appellant; Attorney Smyth and Attorney Wakeman for the Respondent.