Zambrano applications made before the end of the transition period should still be considered after that date

The Court of Appeal has said that where an application for an EEA family permit as a Zambrano carer under the Immigration (European Economic Area Regulations) 2016 was made before the end of the transitional period (31 December 2020), then the Home Office should still consider and decide that application even after the 2016 regulations had been revoked. The case is Ahmad v Secretary of State for the Home Department [2025] EWCA Civ 829.

Mrs Ahmad applied for an EEA family permit in December 2020 as the primary carer of a British national child entitled to reside in the UK. She had also applied on a different grounds which was refused, with no reference made to her application as primary carer. The First-tier Tribunal also failed to deal with this aspect of her case and the Upper Tribunal wrongly considered it to be a new matter and dismissed her appeal.

The Home Secretary argued that:

(1) there was no jurisdiction to grant an EEA family permit to a primary carer of British national children as the relevant regulation, regulation 16 of the 2016 Regulations, had been revoked by the time the application was determined. Any failure by the First-tier Tribunal to consider this issue was, therefore, immaterial as the appeal would have had to be dismissed in any event;

In the joined appeal of Mr Rafiu, the Home Secretary was the appellant and had appealed on the basis that the Upper Tribunal was wrong to find that Mr Rafiu qualified for an EEA family permit as the primary carer of a British national child because regulation 16 of the Immigration (EEA) Regulations 2016 had been revoked.

The issue is that the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020 (the Transitional Regulations”) do not provide for third country nationals who were the primary carers of British children to have any rights under the Withdrawal Agreement after the end of the transition period.

The court said that the “words of the Transitional Regulations are clear” and that there “is no requirement that Regulation 16 must be in force at the time that the application is determined or that a person must have a right to reside under regulation 16(5) in order to qualify for a right to be admitted”.

The Court of Appeal concluded that:

The Transitional Regulations do provide for the consideration, and grant, of a valid application for an EEA family permit made before the end of the transitional period but determined after that date where the applicant, as the primary carer of a British national child, meets the criteria described in regulation 11(5)(e) of the 2016 Regulations.

The court rightly commended the Bar Pro Bono Unit for providing representation to Mrs Ahmad in this case.