Arshia Sadaf Ahmad v Secretary of State for the Home Department

A valid application for an EEA family permit made before the end of the transitional period remains capable of being granted after revocation of the Immigration (European Economic Area) Regulations 2016. The reference in regulation 11(5)(e) to regulation 16(5) identifies the relevant admission criteria. It does not require regulation 16 to remain in force or require a current right to reside when the application is decided. The transitional scheme is distinct from the EU Settlement Scheme provisions. A tribunal must determine a properly raised claim that an application was made as the primary carer of a British national child. An appellate court should not ordinarily entertain a new issue requiring new evidence or a materially different hearing below.

These conjoined appeals concerned applications made before the end of the Brexit transitional period for EEA family permits as primary carers of British national children.

In Mrs Ahmad’s case, the First-tier Tribunal dismissed her appeal without deciding whether she had made a valid primary-carer application. The Upper Tribunal treated that issue as a new matter and dismissed her appeal. In the Secretary of State’s appeal concerning Mr Rafiu and his family, the Upper Tribunal allowed the appeal after finding that the family arrangements satisfied the relevant criteria. The central issue was whether the Transitional Regulations preserved power to determine and grant applications made before the end of the transitional period but decided afterwards.

The Court of Appeal, unanimously, allowed Mrs Ahmad’s appeal and dismissed the Secretary of State’s appeal concerning Mr Rafiu.

1. Transitional scheme. Paragraph 3 of Schedule 3 to the Immigration and Social Security Co-ordination (EU Withdrawal) (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020 continued regulation 12 of the Immigration (European Economic Area) Regulations 2016 for valid applications made before commencement day. Paragraphs 4 and 6 continued the relevant parts of regulations 11 and 21 for deciding whether those applications should be granted.
2. Construction of the cross-reference. Regulation 11(5)(e) operates on a hypothesis. It asks whether the applicant and British citizen would be entitled to reside under regulation 16(5) if both were in the United Kingdom. That cross-reference describes the admission criteria. It does not require regulation 16 to remain in force when the application is decided, nor does it require the applicant to have a separate current right to reside. The Transitional Regulations and the Application Regulations address different applications and classes of person. Nothing in the Transitional Regulations restricts their benefit to applicants covered by the Application Regulations.
3. Mrs Ahmad. The First-tier Tribunal was required to decide whether Mrs Ahmad had made a valid primary-carer application under regulation 21 and, if so, whether she met the admission criteria. The Upper Tribunal failed to determine that issue. This Court was not in a position to decide the factual and validity questions, so the matter was remitted to the First-tier Tribunal.
4. Mr Rafiu. The Secretary of State’s argument concerning the meaning of primary carer was a new point. It had not been raised before either tribunal and might have required evidence of Nigerian law and further factual evidence. Applying Singh v Dass [2019] EWCA Civ 360 and Notting Hill Finance Limited v Nadeem Sheikh [2019] EWCA Civ 1337, it was unfair to permit the point to be raised for the first time on appeal. The Upper Tribunal had considered whether the British child could reside in the United Kingdom without Mr Rafiu and was entitled to draw the relevant inferences from the evidence.

1. Court of Appeal (Civil Division): Mrs Ahmad’s appeal allowed. The Secretary of State’s appeal concerning Mr Rafiu and his family dismissed.
2. Upper Tribunal (Immigration and Asylum Chamber): Mrs Ahmad’s appeal dismissed. Mr Rafiu and his sons’ appeal allowed.
3. First-tier Tribunal: Mrs Ahmad’s appeal dismissed. Mrs Olufiade’s appeal was allowed, while Mr Rafiu and his sons’ appeals were dismissed.