The Court of Appeal (CoA) delivered a significant judgement, one which confirms that individuals who made valid applications for European Economic Area (EEA) family permits as primary carers of British national children before the end of the Brexit transitional period can still have those applications considered and, where appropriate, granted, even if the decision was made after the transition's conclusion.
Background:
These two appeals concern questions related to applications for EEA family permits under the Immigration (EEA Regulations) 2016.
Mrs. Ahmad, a Pakistani national, has three British citizen children. In December 2020, she applied for an EEA family permit. While her online application initially focused on being a dependent relative of her Irish national son, she also claims that she submitted a letter requesting an EEA family permit as the primary carer of her British national children under Regulation 16. The Entry Clearance Officer (ECO), however, refused her application, but only on the dependency ground.
Mrs. Ahmad appealed to the First-Tier Tribunal (FTT), which failed to address her argument that the ECO hadn't decided the primary carer aspect. The Upper Tribunal (UT) wrongly concluded that this constituted a new matter, one that was not previously raised, and so dismissed the appeal. Mrs. Ahmad again appealed.
Mrs. Olufiade, a Nigerian national, is the mother of a British national daughter. In December 2020, she applied for an EEA family permit as her daughter's primary carer. Her husband, Mr. Rafiu, and his two sons (all Nigerian nationals) also applied for EEA family permits, seemingly as primary carers of his step-daughter (Mrs. Olufiade's daughter). The ECO refused these applications, largely believing the British child could live with her biological father in the UK.
The FTT held that Mrs. Olufiade was entitled to an EEA family permit, but dismissed the appeal of Mr. Rafiu and his two children. On appeal, the UT held that Mr Rafiu and his two sons qualified for admission under the 2016 Regulations and allowed their appeal. The Secretary of State appealed.
Decision:
The CoA allowed the appeal of Mrs. Ahmad, with her case being sent back to the FTT to properly decide whether she had made a valid primary carer application and met the criteria, dismissing the Secretary of State's appeal in Mr. Rafiu's case. The core of the judgement in these appeals hinges on the proper interpretation of the Transitional Regulations and whether they preserved the power to grant EEA family permits to primary carers of British national children after the Brexit transitional period ended.
The Court found the Transitional Regulations' wording to be clear. Paragraph 3 of Schedule 3 expressly states that Reg. 12 (concerning the issuance of permits) "continues to apply" for valid pre-Brexit applications. The purpose of the Transitional Regulations was to allow pre-Brexit applications to be processed, and continuing Regs. 11 & 12 achieved this.
The 2016 Regulations always distinguished between a right to admission (i.e., a permit) and a right to reside (a residence card). While policy might prefer a clear residence path, the Court's role is to interpret the law as written. Speculation on the Home Office's intent was not appropriate.
Implications:
The most direct and crucial implication is the confirmation that applications for EEA family permits (specifically for primary carers of British citizens, i.e., "Zambrano carers") made before the end of the Brexit transitional period (31 December 2020) can still be processed and granted after that date. This directly contradicts the Secretary of State's argument that the power to grant such permits ceased with the revocation of Regulation 16 of the 2016 Regulations.
The Court emphasised interpreting the "clear wording" of the Transitional Regulations, even if the practical consequences (e.g., granting admission without an immediate, clear right to subsequent residence) seemed "odd" to the Home Office. The Court explicitly refused to speculate on the Secretary of State's intent if it contradicted the plain language of the regulations.
