Arshia Sadaf Ahmad v Secretary of State for the Home Department [2025] EWCA Civ 829

[2025] EWCA Civ 829Case No CA-2024-000922
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
UPPER TRIBUNAL JUDGE RIMINGTON AND DEPUTY UPPER TRIBUNAL JUDGE HANBURY
APPEAL NUMBER UI-2022-001415 and
UPPER TRIBUNAL JUDGE KAMARA
APPEAL NUMBERS UI-2022-001169, UI-2022-001170, UI-2022001171
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 03/07/2025
Before
LORD JUSTICE MOYLANLORD JUSTICE LEWISLADY JUSTICE ELISABETH LAING
ARSHIA SADAF AHMAD AppellantSECRETARY OF STATE for HOMEDEPARTMENT Respondent
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTAppellant(1) SAKIRU MICHAEL RAFIURespondents(2) SHERIF ADEOLA RAFIURespondent(3) TAWAKALT OPEYEMI RAFIURespondent
Dr Niaz A Shah (instructed by the Bar pro bono unit Advocate) for Appellant in the first appealThomas Yarrow (instructed by Government Legal Department) for Respondent in the first appealJulia Smyth KC and Thomas Yarrow (instructed by the Government Legal Department) for Appellant in the second appealJason Pobjoy KC (appointed by the Government Legal Department for Attorney General) as Advocate to the Court in the second appealCharles Mannan by written submissions only for Respondents in the second appealHearing Hearing dates: 9 and 10 June 2025
Approved JudgmentThis judgment was handed down remotely at 10.30am on 3 rd July 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................
[1]These two appeals concern persons who made, or were said to have made, applications for EEA family permits under the Immigration (European Economic Area Regulations) 2016 (“the 2016 Regulations”) in order to be admitted to the United Kingdom as the primary carer of British national children. The applications were made before the end of the transitional period which followed the United Kingdom’s departure from the European Union and which ended at 11 p.m. on 31 December 2020. European Union law and the 2016 Regulations were both applicable in the United Kingdom during the transitional period. The applications were, however, determined after the end of the transitional period and at a time when the relevant European Union law had ceased to apply in the United Kingdom and the 2016 Regulations had been revoked. In anticipation of that situation occurring, 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 made. The principal question on these appeals concerns the proper interpretation of the Transitional Regulations.[2]In brief, Mrs Ahmad is a citizen of, and resident in, Pakistan. She has four children, three of whom are British nationals. She says that she made a valid application under the 2016 Regulations in December 2020 for an EEA family permit as the primary carer of a British national child who would be entitled to reside in the United Kingdom. She also applied for an EEA family permit on a different ground (namely, that she was a dependent relative of her fourth and oldest child who is an Irish national). The entry clearance officer in Islamabad refused the application based on her claimed dependency on her fourth child. The officer did not determine any application for an EEA family permit as the primary carer of a British national child. Mrs Ahmad appealed to the First-Tier Tribunal on the ground, amongst others, that the entry clearance officer had failed to determine the application for an EEA family permit made on the basis that she was a primary carer. The First-tier Tribunal did not deal with that aspect of her appeal. The Upper Tribunal (wrongly) concluded that that was a new matter not raised previously and so dismissed the appeal.[3]Mrs Ahmad appeals to this Court on one ground namely that: (1) the First-tier Tribunal failed to consider her claim that she was entitled to an EEA family permit as a primary carer of British national children.[4]By a respondent’s notice, the respondent, the Secretary of State for the Home Department, sought to uphold the decision of the Upper Tribunal on the following grounds:(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;(2) that the applicant had not, in fact, made a valid application for an EEA family permit on the basis that she was the primary carer of a British national child.[5]Mrs Olufiade is a Nigerian national. She applied for an EEA family permit as the primary carer of a British national child, namely her daughter. Mr Rafiu married Mrs Olufiade after she had divorced her first husband, who was the daughter’s biological father. Mr Rafiu also applied for an EEA family permit as the primary carer of a British national child (his step-daughter). Two of his children also made applications for EEA family permits. Mr Rafiu and his children are Nigerian citizens living in Nigeria. The applications were refused by an entry clearance officer. On an appeal against the decisions, the First-tier Tribunal 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 Upper Tribunal held that Mr Rafiu and his two sons qualified for admission under the 2016 Regulations and allowed their appeal.[6]The Secretary of State appeals on three grounds. The first is a ground, added by amendment, referred to as ground A, and grounds one and two were the original grounds of appeal. The grounds are: Ground A The Upper Tribunal erred in finding that Mr Rafiu and his two children qualified for admission as regulation 16 of the 2016 Regulations had been revoked. Ground 1 The Upper Tribunal failed to consider whether Mr Rafiu met the requirements for being a primary carer of a British citizen under regulation 16 of the 2016 Regulations. Ground 2 The Upper Tribunal failed to consider relevant matters when assessing whether the British national children would be unable to reside in the United Kingdom if Mr Rafiu was not permitted to be in the United Kingdom.[7]The common issue underlying both appeals, therefore, is the proper interpretation of the Transitional Regulations and, in particular, whether the Secretary of State had power to grant an EEA family permit to a person as a primary carer of a British national where an application for such a permit was made before the end of the transitional period but determined after the end of that period.[8]We were assisted in Mr Rafiu’s appeal by Mr Pobjoy KC, an advocate appointed by the Attorney General to assist the court (as Mr Rafiu was no longer represented by counsel). We were assisted in Mrs Ahmad’s case by Dr Shah who appeared pro bono on behalf of Mrs Ahmad who might, otherwise, not have been able to be legally represented. We are grateful to both Mr Pobjoy and Dr Shah for their assistance. We are also grateful to Ms Smyth KC and Mr Yarrow, who represented the Secretary of State in the cases of Mr Rafiu and Mrs Ahmad respectively, and Mr Evans who assisted in the preparation of the written submissions for the Secretary of State in the case of Mr Rafiu. The submissions of counsel on the difficult issues that arise in these two appeals were of very great assistance. THE LEGAL FRAMEWORK Background

THE LEGAL FRAMEWORK

[9]Whilst the United Kingdom was a member of the European Union, it was bound to give effect to European Union law including the law governing the rights of citizens of the European Union and their family members. The United Kingdom gave effect to European Union law by means of the European Communities Act 1972 (“the 1972 Act ”) and domestic legislation made under the 1972 Act.[10]Article 20 of the Treaty on the Functioning of the European Union (“TFEU”) provided that every national of a Member State was also a citizen of the European Union. Citizens of the United Kingdom were therefore also citizens of the European Union. The primary carers of British national children might not, however, be nationals of a Member State (and so would not be European citizens entitled to free movement within the European Union) but might be nationals of third countries. The Court of Justice of the European Union held that Article 20 TFEU precluded national laws from refusing a right of residence to a national of a third country who was the primary carer of a child who was a national of a Member State resident in a Member State if that would result in the child having to leave the European Union: see Case C-34/09 Ruiz Zambrano v Office National de l’Emploi [2012] QB 265. Such third country nationals were seen, therefore, as having derivative rights, that is rights derived from their children, and often referred to as “Zambrano rights” after the case in which the rights were first recognised.

The 2016 Regulations

[11]The 2016 Regulations governed admission to, and residence in, the United Kingdom. They reflected the rights derived from European Union law but, in some respects, may have conferred broader rights than those derived from EU law. For present purposes, it is necessary only to focus on the regulations governing primary carers of British national children.[12]Part 2 of the 2016 Regulations is headed “EEA Rights”. Regulations 11 and 12 of the 2016 Regulations deal with admission to the United Kingdom and the issue of an EEA family permit for that purpose. Regulation 11 is headed “Right of admission to the United Kingdom” and the material provisions are as follows:
“11. (1) An EEA national must be admitted to the United Kingdom on arrival if the EEA national produces a valid national identity card or passport issued by an EEA state. (2) A person who is not an EEA national must be admitted to the United Kingdom if that person is- ….. (b) a person who meets the criteria in paragraph (5) … and produces on arrival- (i) a valid passport; and (ii) a valid EEA permit, residence card, derivative residence card, or permanent residence card. ….. (5) The criteria in this paragraph are that a person (“P”) - ….. (e) is accompanying a British citizen to, or joining a British citizen in, the United Kingdom and P would be entitled to reside in the United Kingdom under regulation 16(5) were P and the British citizen both in the United Kingdom.” (b) a person who meets the criteria in paragraph (5) … and produces on arrival- (i) a valid passport; and (ii) a valid EEA permit, residence card, derivative residence card, or permanent residence card. (ii) a valid EEA permit, residence card, derivative residence card, or permanent residence card. (e) is accompanying a British citizen to, or joining a British citizen in, the United Kingdom and P would be entitled to reside in the United Kingdom under regulation 16(5) were P and the British citizen both in the United Kingdom.”
[13]Regulation 12 is headed “Issue of EEA family permit” and the material provisions provided:
“(2) An entry clearance officer must issue an EEA family permit to a person who applies and provides evidence demonstrating that, at the time at which the person first intends to use the EEA family permit, the person – (a) would be entitled to be admitted to the United Kingdom because that person would meet the criteria in regulation 11(5); and (b) will (save in the case of a person who would be entitled to be admitted because that person would meet the criteria for admission in regulation 15(a)) be accompanying to, or joining in, the United Kingdom any person from whom the right to be admitted to the United Kingdom under the criteria in regulation in 11(5) is derived.” (a) would be entitled to be admitted to the United Kingdom because that person would meet the criteria in regulation 11(5); and (b) will (save in the case of a person who would be entitled to be admitted because that person would meet the criteria for admission in regulation 15(a)) be accompanying to, or joining in, the United Kingdom any person from whom the right to be admitted to the United Kingdom under the criteria in regulation in 11(5) is derived.”
[14]Regulations 13 to 16 dealt with different rights of residence, including rights to initial residence, extended residence, permanent residence and, of relevance to this case, derivative residence. Regulation 16 dealt with different types of derivative rights of residence. This included primary carers of persons under 18 who were economically self-sufficient and resident in the United Kingdom. It also included primary carers of persons resident and undertaking education in the United Kingdom. Regulation 16 also dealt with the category of persons relevant to these appeals, namely, primary carers of British national children who would be unable to reside in the United Kingdom or a Member State of the European Economic Area if the primary carer had to leave the United Kingdom for an indefinite period. Regulation 16 provided, so far as material, as follows: 16.— Derivative right to reside (1) A person has a derivative right to reside during any period in which the person— (a) is not an exempt person; and (b) satisfies each of the criteria in one or more of paragraphs (2) to (6). ….. (5) The criteria in this paragraph are that— (a) the person is the primary carer of a British citizen (“BC”); (b) BC is residing in the United Kingdom; and (c) BC would be unable to reside in the United Kingdom or in another EEA State if the person left the United Kingdom for an indefinite period. ….. (8) A person is the “primary carer” of another person (“AP”) if— (a) the person is a direct relative or a legal guardian of AP; and (b) either— (i) the person has primary responsibility for AP’s care; or (ii) shares equally the responsibility for AP’s care with one other person. (9) In paragraph (2)(b)(iii), (4)(b) or (5)(c), if the role of primary carer is shared with another person in accordance with paragraph (8)(b)(ii), the words “the person” are to be read as “both primary carers”.” (b) satisfies each of the criteria in one or more of paragraphs (2) to (6). (a) the person is the primary carer of a British citizen (“BC”); (c) BC would be unable to reside in the United Kingdom or in another EEA State if the person left the United Kingdom for an indefinite period. (a) the person is a direct relative or a legal guardian of AP; and (i) the person has primary responsibility for AP’s care; or (ii) shares equally the responsibility for AP’s care with one other person.[15]Part 3 of the 2016 Regulations deals with residence documentation. It deals with the provision of registration certificates, residence cards, permanent residence cards and derivative residence cards. Regulation 20 provided so far as material that:
“20.— Issue of a derivative residence card (1) The Secretary of State must issue a person with a derivative residence card on application and on production of— (a) a valid national identity card issued by an EEA State or a valid passport; and (b) proof that the applicant has a derivative right to reside under regulation 16. (2) On receipt of an application under paragraph (1) the Secretary of State must issue the applicant with a certificate of application as soon as possible. (3) A derivative residence card issued under paragraph (1) is valid until— (a) the date five years from the date of issue; or (b) any earlier date specified by the Secretary of State when issuing the derivative residence card. (4) A derivative residence card issued under paragraph (1) must be issued as soon as practicable. (5) A derivative residence card is— (a) proof of the holder’s derivative right to reside on the day of issue; (b) no longer valid if the holder ceases to have a derivative right to reside under regulation 16; (c) invalid if the holder never had a derivative right to reside under regulation 16 …..” (a) a valid national identity card issued by an EEA State or a valid passport; and (b) proof that the applicant has a derivative right to reside under regulation 16. (b) any earlier date specified by the Secretary of State when issuing the derivative residence card. (a) proof of the holder’s derivative right to reside on the day of issue; (b) no longer valid if the holder ceases to have a derivative right to reside under regulation 16; (c) invalid if the holder never had a derivative right to reside under regulation 16 …..”
[16]Regulation 21 deals with the procedure for applications for documents and provides, so far as material, that: “21.— Procedure for applications for documentation under this Part and regulation 12(1) An application for documentation under this Part, or for an EEA family permit under regulation 12, must be made— (a) online, submitted electronically using the relevant pages of www.gov.uk; or (b) by post or in person, using the relevant application form specified by the Secretary of State on www.gov.uk.(2) All applications must— (a) be accompanied by the evidence or proof required by this Part or regulation 12, as the case may be, as well as that required by paragraph (5) , within the time specified by the Secretary of State on www.gov.uk; and (b) be complete. ….. (4) When an application is submitted otherwise than in accordance with the requirements in this regulation, it is invalid and must be rejected ….. (6) Where— (a) there are circumstances beyond the control of an applicant for documentation under this Part; and (b) as a result, the applicant is unable to comply with the requirements to submit an application online or using the application form specified by the Secretary of State, the Secretary of State may accept an application submitted by post or in person which does not use the relevant application form specified by the Secretary of State.” (a) online, submitted electronically using the relevant pages of www.gov.uk; or (b) by post or in person, using the relevant application form specified by the Secretary of State on www.gov.uk. (a) be accompanied by the evidence or proof required by this Part or regulation 12, as the case may be, as well as that required by paragraph (5) , within the time specified by the Secretary of State on www.gov.uk; and (a) there are circumstances beyond the control of an applicant for documentation under this Part; and (b) as a result, the applicant is unable to comply with the requirements to submit an application online or using the application form specified by the Secretary of State,

The Withdrawal Agreement and its implementation in domestic law

[17]The United Kingdom entered into a Withdrawal Agreement with the European Union. As the recitals make clear, the Withdrawal Agreement was intended to “ensure an orderly withdrawal of the United Kingdom from the Union”. It was recognised that it was “necessary to provide reciprocal protection for Union citizens and for United Kingdom nationals, as well as their respective family members, where they have exercised free movement rights before a date set in this Agreement”. The rights conferred by the Withdrawal Agreement are given effect in domestic law by section 7A of the European Union (Withdrawal) Act 2018, as amended by section 5 of the European Union (Withdrawal Agreement) Act 2020 (“the Withdrawal Agreement Act”). See generally Celik v Secretary of State for the Home Department [2023] EWCA Civ 921, [2024] 1 WLR 1946.[18]The Withdrawal Agreement defined certain categories of persons who fell within the scope of the Withdrawal Agreement. Title II of Part 2 of the Withdrawal Agreement guaranteed the rights of EU nationals and certain of their family members resident in the United Kingdom and certain categories of third country nationals who had derivative rights. Such persons were entitled to reside in the United Kingdom in accordance with the terms of the Withdrawal Agreement after the end of the transitional period. The Withdrawal Agreement did not guarantee, or protect, the rights of primary carers of British national children (that is, those referred to as persons having Zambrano rights). The United Kingdom was not obliged under the terms of the Withdrawal Agreement to give protection to such persons after the end of the transitional period.[19]Article 18 of the Withdrawal Agreement provided that the United Kingdom (or a Member State of the European Union) could choose to provide a new residence status which conferred the rights guaranteed under the Withdrawal Agreement. The Withdrawal Agreement also contained provisions governing the conditions under which applications for the new residence status could be made. Article 18(1)(b) provides that “the deadline for submitting an application shall not be less than 6 months from the end of the transition period”.[20]The United Kingdom chose to create a new residence status. The relevant rules are contained in the EU Settlement Scheme which is contained in Appendix EU to the Immigration Rules. As explained by Underhill LJ at paragraph 1 of his judgment in Rexhaj v Secretary of State for the Home Department [2024] EWCA Civ 784, [2025] 1 WLR 63:
“the purpose of the EUSS is to give residence rights in the UK to EU, EEA and Swiss citizens (referred to together as “EEA citizens”) who had prior to the UK’s withdrawal from the EU (and from its associated treaties with the EEA and Switzerland) been living in the UK, and in some circumstances also to their family members. The rights in question take the form of either limited or indefinite leave to remain (“LLR” or “ILR”)—otherwise known as “pre-settled” or “settled” status—but where it is not necessary to distinguish I will refer to them compendiously as “settlement”.”
[21]The Secretary of State made the Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020 (“the Application Regulations”). Those regulations were made pursuant to section 7 of, and paragraph 12 of Schedule 4 to, the Withdrawal Agreement Act which conferred powers to make regulations for the purpose of Article 18(1)(b) of the Withdrawal Agreement. Regulation 2 provided that the date for applications for residence status would be 30 June 2021, i.e. six months after the end of the transitional period. The six month period is described as the “grace period”. Regulation 2 provides, so far as material, that:
“2. Deadline for applications The end of 30 June 2021 is the deadline for submission of an application for residence status ("application deadline") that applies for the purposes of the following provisions— (a) the first sub-paragraph of Article 18(1)(b) of the Withdrawal Agreement…..” (a) the first sub-paragraph of Article 18(1)(b) of the Withdrawal Agreement…..”
[22]The Application Regulations also made provision for situations where an application for the new residence status was made during the grace period but was determined after the end of it. The aim of the provisions was to ensure that EU nationals and others who had rights to reside guaranteed under the Withdrawal Agreement would continue enjoy those rights after the end of the grace period until the application was determined. This was achieved by maintaining the 2016 Regulations in force for such cases. The 2016 Regulations would otherwise have been revoked on 31 December 2020 for such cases when the transitional period (referred to in the regulations as IP completion day) came to an end. The material regulations provide as follows:
“4.— Applications which have not been finally determined by the application deadline (1) This regulation has effect if the EEA Regulations 2016 are revoked on IP completion day (with or without savings). (2) This regulation applies to a person ("the applicant") who— (a) has made an in-time application (see paragraph (6)), and (b) immediately before IP completion day— (i) was lawfully resident in the United Kingdom by virtue of the EEA Regulations 2016, or (ii) had a right of permanent residence in the United Kingdom under those Regulations (see regulation 15). (3) The provisions of the EEA Regulations 2016 specified in regulations 5 to 10 continue to have effect (despite the revocation of those Regulations) with the modifications specified in those regulations in relation to the applicant during the relevant period. ….. (6) For the purposes of this regulation— (a) an in-time application is an application for leave to enter or remain in the United Kingdom by virtue of residence scheme immigration rules which— (i) is valid under residence scheme immigration rules; (ii) is made on or before the application deadline, and (iii) has not been withdrawn; ….. 6. Provisions relating to residence rights The following provisions of Parts 2 and 3 of the EEA Regulations 2016 (provisions relating to residence rights and residence documentation) with the modifications set out below are specified for the purposes of regulations 3 and 4— (a) regulation 11 (right of admission to the United Kingdom) with the modifications that— (i) sub-paragraph (a) of paragraph (2) were omitted; (ii) in paragraph (3), for ", a permanent residence card or a qualifying EEA State residence card" there were substituted "or a permanent residence card"; (iii) paragraph (4) were omitted; (b) regulation 12 (issue of EEA family permit) with the modification that … (c) regulation 13 (initial right of residence) with the modification that ….; (d) regulation 14 (extended right of residence) with the modification that ….; (e) regulation 15 (right of permanent residence) with the modification that …..; (f) regulation 16 (derivative right to reside) with the modifications that— (i) in paragraph (5)(c), for “another” there were substituted “an”; (ii) in paragraph (12), after “6(3)”, there were inserted “, 27A”; (g) regulation 21 (procedure for applications for documentation under this Part and regulation 12) with the modifications that— (i) in paragraph (1) and in paragraph (4A), “documentation under this Part, or for” were omitted; ii) in paragraph (2), “this Part or” and “, as the case may be, as well as that required by paragraph (5),” were omitted; (iii) paragraphs (3), (5) and (6) were omitted…..”. (i) was lawfully resident in the United Kingdom by virtue of the EEA Regulations 2016, or (ii) had a right of permanent residence in the United Kingdom under those Regulations (see regulation 15). (a) an in-time application is an application for leave to enter or remain in the United Kingdom by virtue of residence scheme immigration rules which— (i) is valid under residence scheme immigration rules; (ii) is made on or before the application deadline, and (iii) has not been withdrawn; (a) regulation 11 (right of admission to the United Kingdom) with the modifications that— (i) sub-paragraph (a) of paragraph (2) were omitted; (ii) in paragraph (3), for ", a permanent residence card or a qualifying EEA State residence card" there were substituted "or a permanent residence card"; (iii) paragraph (4) were omitted; (ii) in paragraph (3), for ", a permanent residence card or a qualifying EEA State residence card" there were substituted "or a permanent residence card"; (b) regulation 12 (issue of EEA family permit) with the modification that … (c) regulation 13 (initial right of residence) with the modification that ….; (d) regulation 14 (extended right of residence) with the modification that ….; (e) regulation 15 (right of permanent residence) with the modification that …..; (f) regulation 16 (derivative right to reside) with the modifications that— (i) in paragraph (5)(c), for “another” there were substituted “an”; (ii) in paragraph (12), after “6(3)”, there were inserted “, 27A”; (g) regulation 21 (procedure for applications for documentation under this Part and regulation 12) with the modifications that— (i) in paragraph (1) and in paragraph (4A), “documentation under this Part, or for” were omitted; ii) in paragraph (2), “this Part or” and “, as the case may be, as well as that required by paragraph (5),” were omitted; (iii) paragraphs (3), (5) and (6) were omitted…..”
.

The Transitional Regulations

[23]Certain groups of persons who had rights under EU law prior to the United Kingdom leaving the European Union did not have their rights protected by the Withdrawal Agreement. These included third country nationals who were the primary carers of British national children. They would have no rights under the Withdrawal Agreement nor under EU law after the end of the transition period. Any rights they had would be rights granted under domestic law.[24]Section 1 of the Immigration and Social Security Co-ordination (EU Withdrawal Act) 2020 (“the 2020 Act”) provided that Schedule 1 made provision to end free movement of persons under EU law and to “end other EU-derived rights, and repeal other retained EU law, relating to immigration”. Paragraph 2 of Schedule 2 to the 2020 Act revoked the 2016 Regulations at the end of the transitional period, i.e. at 11 p.m. on 31 December 2020. Section 5(3) of the 2020 Act provided power to make regulations making supplementary, incidental, transitional, transitory or saving provisions that the Secretary of State considered appropriate in connection with any provision of Part 1 of the 2020 Act. The Transitional Regulations were made by the Secretary of State pursuant to the power conferred by sections 5 and 8(5) of the 2020 Act.[25]Regulation 82 of, and Schedule 3 to the Transitional Regulations deal with the position of persons who made applications before the end of the transitional period (and so at a time when the provisions of EU law and the 2016 Regulations still applied to them) but where the application was determined after the end of the transitional period. Paragraph 1 provides that:
“1. In this Schedule “EEA Regulations 2016” means the Immigration (European Economic Area) Regulations 2016and, unless provided otherwise, refers to those Regulations as they had effect immediately before they were revoked.”
[26]Paragraph 3 of Schedule 3 is headed “Pending applications for documentation under the EEA Regulations 2006” and provides so far as material:
“(1) Regulation 12 of the EEA Regulations 2016 (issue of EEA family permit), continues to apply for the purposes of considering and, where appropriate, granting an application for a family permit which was validly made in accordance with the EEA Regulations 2016 before commencement day. (2) Regulation 12 of the EEA Regulations 2016 also continues to apply for the purposes of considering and, where appropriate, granting an application for a family permit which was validly made after commencement day in accordance with the EEA Regulations 2016 as they are continued in effect by the Citizens' Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020. ….. (6) Regulation 20 of the EEA Regulations 2016 (issue of a derivative residence card), continues to apply for the purposes of considering and, where appropriate, granting an application for a derivative residence card which was validly made in accordance with the EEA Regulations 2016 before commencement day.”
[27]Paragraph 4 provides that:
“4.— Application of EEA Regulations 2016 to pending applications (1) Subject to sub-paragraph (2) the provisions of the EEA Regulations 2016 specified in paragraph 6 continue to apply (despite the revocation of those Regulations) with the modifications specified for the purposes of determining whether an application referred to in paragraph 3 should be granted. (2) The provisions specified in paragraph 6 do not apply to the extent that the provisions of the EEA Regulations 2016 specified in that paragraph continue to apply to an application within paragraph 3(2) by virtue of the Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020.”
[28]The material provisions of paragraph 6 provide as follows: “(1) The specified provisions of the EEA Regulations 2016 are— ….. (k) regulation 11 (right of admission to the United Kingdom); (l) regulation 21 (procedure for applications for documentation under this Part and regulation 12); ….. (k) regulation 11 (right of admission to the United Kingdom); (l) regulation 21 (procedure for applications for documentation under this Part and regulation 12);[29]Regulation 16 of the 2016 Regulations is not a specified provision, that is, it is not included as one of the regulations which continue to apply for the purposes of determining whether an application should be granted. THE FACTUAL BACKGROUND Mrs Ahmad

THE FACTUAL BACKGROUND

[30]Mrs Ahmad is a national of Pakistan born on 26 July 1976. She first entered the United Kingdom on a spouse’s visa on 18 May 2001. She was granted leave to remain in the United Kingdom as a spouse in 2003. She left the United Kingdom on about 8 July 2012 . She currently lives in Pakistan with three of her four children. Those three children are British nationals; two were born in London (in 2005 and 2009 respectively) and the third is a British national although born in Islamabad. Mrs Ahmad’s eldest son, Muhammed, was born on 21 February 2002. He is a national of Ireland.[31]Mrs Ahmad submitted an on-line application dated 3 December 2020. That form shows that the application category selected was “Family member of an EEA national”. The basis of the application was that she was a dependant of her oldest son, Muhammed.[32]Mrs Ahmad also says that she wrote a letter dated 26 December 2020 stating that the subject of the letter was her application for entry clearance or a family permit(1) as the primary carer of British national children pursuant to regulation 16 of the 2016 Regulations and(2) as a dependent parent under regulation 7 of the 2016 Regulations and(3) as a member of the same household. She says that she arranged for that letter, and an accompanying letter explaining how she looked after her three younger children, to be uploaded on the relevant Home Office website for consideration by the entry clearance officer. The skeleton argument filed on her behalf indicates that she considers that she could not have made an on-line application as a primary carer as she had already submitted relevant documents with the on-line application made for a family permit as a dependant of her son, Muhammed.[33]By a notice dated 21 April 2021, an entry clearance officer refused to issue an EEA family permit. The notice states that Mrs Ahmad had applied as a “dependent direct relative” and the application had been considered under regulation 7 of the 2016 Regulations. The application was refused because the entry clearance officer was not satisfied that Mrs Ahmad was financially dependent on her son. The notice does not refer to any application for an EEA permit being made on the basis that Mrs Ahmad was the primary carer of British national children.[34]Mrs Ahmad appealed to the First-tier Tribunal against the refusal of an EEA family permit. One of her grounds of appeal was that the entry clearance officer had failed to consider the application based on her being the primary carer of British national children and only dealt with the application based on dependency on her oldest son. Another ground related to her dependency on her son and she produced further evidence said to support the claim of dependency.[35]The First-tier Tribunal dismissed the appeal, finding that Mrs Ahmad was not dependent upon her oldest son. It did not deal with the ground of appeal alleging that the entry clearance officer had failed to consider the application based on being a primary carer of British national children.[36]Mrs Ahmad appealed to the Upper Tribunal. Ground 1 was that the First-tier Tribunal had not considered the ground of appeal that she was entitled to an EEA family permit as the primary carer of British national children. The Upper Tribunal dismissed the appeal and said this in relation to ground 1:
“Notwithstanding reference was made in the ground of appeal to the appellant’s position as carer, the application was made to the ECO under regulation 7 as a dependant family member. It was not made on the basis that the appellant was the primary carer of British nationals. We note that the issue of whether the appellant was the “primary carer” of British nationals was only raised as [a] new matter in the grounds of appeal to the tribunal as to which reference has been made. Further to s. 85 of the Nationality and Immigration Act 2002 there was not indication that the appellant had given consent for the consideration of a new matter and the judge cannot consider a new matter unless the Secretary of State had given consent. That had not occurred. We thus find no error of law on this basis.”

Mr Rafiu

[37]Mrs Olufiade is a Nigerian national. She is the mother of a British national child, a daughter, born on 11 January 2014. She also has a son. In 2020, all three were living in Nigeria. She had two other children who lived in the United Kingdom. She was divorced from the father of these children. She married Mr Rafiu. He has other children, including Sherif Adeola Rafiu, born on 23 May 2003, and Tawkalt Opeyemi Rafiu, born on 7 December 2007. Mr Rafiu and his sons are Nigerian nationals living in Nigeria.[38]On about 18 December 2020, that is before the end of the transitional period, Mrs Olufiade applied for an EEA family permit as the primary carer of a British national child. On about 18 December 2020, Mr Rafiu also applied for an EEA family permit. Whilst the documentation is not entirely clear, it seems that Mr Rafiu applied as the primary carer of an EEA national, namely his step-daughter, (that is, Mrs Olufiade’s daughter). His two sons also applied for an EEA family permit relying on their relationship with their step-sister.[39]By decisions dated 30 January 2021, the entry clearance officer refused those applications. The basis for that refusal in Mrs Oluifade’s case was, it seems, that her daughter’s biological father (Mrs Olufiade’s first husband) lived in the United Kingdom and the entry clearance office concluded that “it was reasonable to assume that the [British child] would be able to reside in the UK with her father”. The applications made by Mr Rafiu for him (and those of his children) were refused as they were dependent upon Mrs Olufiade’s application succeeding and that application had been refused.[40]Mrs Olufiade, her son, Mr Rafiu and two of Mr Rafiu’s children appealed to the First-tier Tribunal. By a decision dated 5 November 2021, the First-tier Tribunal allowed the appeal of Mrs Olufiade and her son. It held that the father would not be a suitable carer for her daughter and that the daughter would not be able to reside in the United Kingdom unless her mother was also able to accompany her. Mrs Olufiade would not be able to come to the United Kingdom unless her son was also able to accompany his mother and his sister. Following the decision of the First-tier Tribunal, the Secretary of State granted an appropriate family permit or equivalent document to enable Mrs Olufiade and her son to accompany the daughter to the United Kingdom.[41]The First-tier Tribunal dismissed the appeal of Mr Rafiu and his two sons. It concluded that there was insufficient evidence to show that Mr Rafiu and his children lived with Mrs Olufiade and her children as an extended family or that they operated as a family unit. Mr Rafiu and his two children appealed to the Upper Tribunal. One of the grounds of appeal was that the First-tier Tribunal had not properly considered the evidence concerning the relationship between Mr Rafiu and Mrs Olufiade and how that led to Mr Rafiu caring for Mrs Olufiade’s daughter. The Upper Tribunal found that there had been an error by the First-tier Tribunal and decided to remake the decision. The Upper Tribunal asked the parties for submissions. The Home Office presenting officer stated that she had nothing to add. The Upper Tribunal allowed Mr Rafiu and his sons’ appeal for the following reason:
“24. Also relevant are regulations 11(5)(d) and (e) which take account of the fact that that these appeals concern a right of admission to the UK. The facts as set out in the evidence before me, are that the first appellant, who is a widower, became the joint carer of the British child in this case following his marriage to Mrs Olufiade in December 2020. He lived with Mrs Olufiade, her children and his own children (including the second and third appellants) in a family unit. The second and third appellants were both minors at the time of the application for entry clearance and are dependent on their father and Mrs Olufiade for their care. As indicate above, their mother is deceased. I am satisfied that Mrs Olufiade would be prevented from entering the United Kingdom and taking care of her British child without the presence of her husband, who in turn would be unable to enter the UK without his own children who are dependent upon him. It was not contended on behalf of the respondent that the appellants could not benefit from the above-mentioned Regulations for any reason other than that advanced by the [entry clearance officer] in the decisions under appeal. 25. It follows that I am satisfied that the appellants meet the relevant requirements of the EEA Regulations.”

THE ISSUES

[42]In the light of the background, and the grounds of appeal and respondent’s notice described at paragraphs 3, 4 and 6 above, it is sensible to consider the issues that arise in the following order.[43]First, I consider 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 where an application for such a permit was made before the end of the transitional period but determined after the end of that period.[44]Secondly, I consider whether the Upper Tribunal erred by not considering Mrs Ahmad’s appeal that the entry clearance officer had not considered her claim that she was entitled to an EEA family permit as the primary carer of a British national child and, if so, whether this Court is in a position to determine(a) whether as a matter of fact Mrs Ahmad had made such an application and(b) whether the application was valid.[45]Thirdly, I consider the second and third grounds of appeal in Mr Rafiu’s case, that is whether the Upper Tribunal erred in failing to consider the meaning of primary carer and whether it properly considered the question of whether the British national child would not be able to remain in the United Kingdom if he were not admitted to the United Kingdom. THE FIRST ISSUE – THE MEANING OF THE TRANSITIONAL PROVISIONS Submissions

THE FIRST ISSUE – THE MEANING OF THE TRANSITIONAL PROVISIONS

[46]Ms Smyth KC dealt with the first issue on behalf of the Secretary of State. She submitted that entry clearance officers did not have power to grant an EEA family permit where an application had been made before the end of the transitional period but the decision was taken after that date. Paragraph 3 of Schedule 3 to the Transitional Regulations provided that regulation 12 of the 2016 Regulations continued to apply for the purpose of considering and “where appropriate granting” an application for a family permit. She submitted that it could not be appropriate to grant an application given that regulation 16(5) of the 2016 Regulations, which provided for a right to reside, had been revoked. Regulation 16 was not one of the regulations saved or continued in force by the Transitional Regulations. She submitted that the right to be admitted under regulation 11 of the Regulations had no substance in the absence of a right to reside once admitted. The reference to regulation 11 being continued in force in the Transitional Regulations was either an error or, alternatively, would only be of value if an applicant could demonstrate that he or she was entitled to reside under the Application Regulations which had to be read together with the Transitional Regulations. She submitted that that result was consistent with the overall context in which the Transitional Regulations were made. The United Kingdom had left the European Union. The Withdrawal Agreement did not preserve any rights of primary carers of British national children to enter or reside in the United Kingdom. The United Kingdom had not granted any right to reside under domestic law. In that context, she submitted it was, in effect, meaningless to talk of a right to be admitted where there was no right to reside.[47]Mr Pobjoy KC, as advocate to the court, submitted that the task of the court was to interpret the relevant provisions of the Transitional Regulations, having regard to the context and the purpose underlying the regulations. Paragraph 3 of Schedule 3 to the Transitional Regulations provided that regulation 12 of the 2016 Regulations continued to apply for the purposes of considering an application for an EEA family permit. Paragraphs 4 and 6 of the Schedule continued regulation 11 of the 2016 Regulations. Regulation 11(5)(e) of the 2016 Regulations provided that a primary carer and a British national child would be entitled to reside in the United Kingdom under regulation 16(5) were the primary carer and the child in the United Kingdom. The Transitional Regulations, therefore, provided for such persons to have a right to be admitted and for the Secretary of State to grant an EEA family permit. Dr Shah, for Mrs Ahmad, adopted those submissions.

Discussion

[48]The task of this Court is to interpret the relevant provisions of the Transitional Regulations. That involves consideration of the words of the relevant provisions, read in context and having regard to the underlying purpose of the Transitional Regulations.[49]The broad context is one where the United Kingdom was leaving the European Union. That involved making provision to give effect to rights guaranteed for certain EU nationals, and third country nationals under the Withdrawal Agreement as was done by the Withdrawal Agreement Act and the regulations made under that Act, including the Application Regulations.[50]The immediate context of the Transitional Regulations, however, was that the 2016 Regulations were being revoked at the end of the transitional period. Those regulations had provided a mechanism for ensuring the enjoyment by third country nationals of rights derived from European Union law and, in some respects, may have conferred broader rights than those derived from EU law. Persons might have applied before the end of the transitional period for relevant documentation to ensure that they were able to enjoy rights recognised, or conferred, by the 2016 Regulations, but the application may not have been determined until after the end of the transitional period. The Secretary of State decided, therefore, to make the Transitional Regulations which continued certain provisions of the 2016 Regulations in force after the end of the transitional period so that such applications would be considered and, where appropriate, granted.[51]Paragraph 1 of Schedule 3 to the Transitional Regulations provides that references to the EEA Regulations 2016 are references to the 2016 Regulations and “unless provided otherwise, refers to those Regulations as they had effect immediately before they were revoked”. Paragraph 3 provides that regulation 12 of the 2016 Regulations “continues to apply for the purposes of considering, and where appropriate granting, an application for a family permit which was validly made in accordance with the EEA Regulations 2016 before commencement day” (i.e. before the revocation of the 2016 Regulations on 31 December 2020). Regulation 12(2) of the 2016 Regulations is the provision which provides that an “entry clearance officer must issue an EEA family permit” to a person who provides evidence demonstrating that he “would be entitled to be admitted to the United Kingdom because that person would meet the criteria in regulation 11(5).”[52]Paragraph 4 of Schedule 3 then provides that the provisions of the 2016 Regulations “specified in paragraph 6 continue to apply (despite the revocation of those Regulations) with the modifications specified for the purposes of determining whether an application referred to in paragraph 3 should be granted”. Paragraph 6 provides that the specified regulations include “regulation 11 (right of admission to the United Kingdom)”. Regulation 11(2) provides, amongst other things, that a “person who is not an EEA national must be admitted to the United Kingdom” if he or she is “a person who meets the criteria in paragraph (5)”. Regulation 11(5)(e) provides that a person meets the criteria if he is accompanying or joining a British citizen in the United Kingdom and the person and the British citizen “would be entitled to reside in the United Kingdom under regulation 16(5) were [the person] and the British citizen both in the United Kingdom”. In other words, regulation 11(5)(e) operates on an hypothesis – if the person concerned and the British citizen were in the United Kingdom, the person would be entitled to reside there. Under regulation 16(5), they would have been entitled to reside if the person was the primary carer of a British national child and the child would be unable to reside in the United Kingdom or another EEA state if the person left.[53]The words of the Transitional Regulations are clear. A valid application for an EEA family permit might have been made under regulation 12 of the 2016 Regulations before the end of the transitional period. Paragraph 3 provides for that application to be considered, and where appropriate granted, after the end of the transitional period. For that purpose, paragraph 3 provides that regulation 12 of the 2016 Regulations continues to apply and that regulation provides that an EEA family permit must be granted if the person “meets the criteria” in regulation 11. Paragraph 4 and 6 then continue regulation 11 in force as that sets out the criteria to be met. It does so by cross-referring to the requirements of regulation 16(5) of the Regulations. The reference to regulation 16(5) is, however, simply a means of identifying or describing the criteria that a person must meet in order to qualify for the grant of an EEA family permit because they are entitled to be admitted to the United Kingdom. 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.[54]That interpretation reflects the context and the purpose underlying the Transitional Regulations. The purpose is to enable people who applied for the relevant document to facilitate admission to the United Kingdom to have that application determined and, where appropriate, granted. It would be appropriate to grant the application where the criteria for the right to admission under the 2016 Regulations were met. That was the purpose of providing for valid applications made before the end of the transitional period to be considered, and of providing for the continuation in force of regulations 11 and 12 of the 2016 Regulations as a mechanism for deciding whether it was appropriate that they be granted.[55]None of the submissions made by Ms Smyth appear to me capable of justifying a departure from the clear wording of the Transitional Regulations. First, Ms Smyth submits that the Transitional Regulations and the Application Regulations must be read together. Regulation 6 of the Application Regulations provides for the continuation in force of regulation 16. Ms Smyth submitted that it is only when a person continues to have a right to reside under regulation 16 by virtue of the provisions of the Application Regulations that they will be entitled to have their application for an EEA family permit granted under the Transitional Regulations.[56]I do not consider that that submission is correct. First, the Transitional Regulations and the Application Regulations are made under different statutory powers and are dealing with different types of applications. The Transitional Regulations are dealing with applications for documentation under the 2016 Regulations made before the end of the transitional period (i.e. 31 December 2020) but determined after that date. The Application Regulations are dealing with applications for the new residence status permitted by the Withdrawal Agreement. They are made to ensure compliance with Article 18(1)(b) of the Withdrawal Agreement which provides that the deadline for making applications for the new residence status shall be not less than 6 months after the end of the transitional period (i.e. 30 June 2021).[57]Secondly, the Application Regulations do not cover all the situations covered by the Transitional Regulations. Dealing specifically with primary carers of British national children, primary carers who were already resident in the United Kingdom at the end of the transitional period would be relevant persons who fall within the scope of paragraph 3 of the Application Regulations. A primary carer who was resident in the United Kingdom but had left the United Kingdom and then wished to return during the grace period might also fall within the scope of the Application Regulations. But primary carers who were not resident in the United Kingdom at the end of the transitional period, but who would have been entitled to be admitted to the United Kingdom, and to be issued with an EEA family permit for that purpose, do not fall within the scope of the Application Regulations. There is nothing in the Transitional Regulations, however, to suggest that those Regulations sought to differentiate between those groups or that the Transitional Regulations were applicable only to some primary carers. Rather, paragraph 3 of Schedule 3 to the Transitional Regulations provides that “Regulation 12” continues to apply to applications for EEA family permits made before the end of the transitional period without any indication that that is only for certain groups of applicants. Similarly, paragraph 4 and 6 continue regulation 11 in force – and that regulation deals with primary carers accompanying or joining a British national child. It includes those who were coming to the United Kingdom for the first time, as well as those who were already resident in the United Kingdom and are returning after a period outside the United Kingdom. There is nothing in the wording of the Transitional Regulations to suggest that when regulation 11 was continued in force, that was for certain groups only.[58]Thirdly, when the Transitional Regulations do seek to modify the operation of those regulations by reference to the Application Regulations, they do so expressly. By way of example, paragraph 3(1) of Schedule 3 to the Transitional Regulations deals with the continued application of regulation 12 of the 2016 Regulations to applications for an EEA family permit made before commencement day (i.e. 11 p.m. on 31 December 2020 when the 2016 Regulations were revoked). Paragraph 3(2) provides that regulation 12 of the 2016 Regulations also applies to applications made under the 2016 Regulations after 31 December 2020 in so far as the 2016 Regulations were continued in force by the Application Regulations. By contrast, there is nothing to indicate that the continuation in force of regulations 11 or 12 of the 2016 Regulations for the purpose of considering applications for EEA family permits made before the end of 31 December 2020 was qualified so that it was only those applicants who fell within the scope of the Application Regulations who were entitled to benefit from regulations 11 and 12.[59]Ms Smyth also submitted that it would be odd to have allowed a primary carer to obtain an EEA family permit enabling them to be admitted to the United Kingdom if the primary carer did not thereafter have the right to residence. The 2016 Regulations, however, operate on the basis that there is a distinction between the right of a primary carer to be admitted to the United Kingdom (evidenced by an EEA family permit) and the right to reside (evidenced by a derivative residence card). It might well be surprising if the Secretary of State provided for the admission of primary carers to the United Kingdom without making arrangements governing the legal basis upon which they could continue to remain in the United Kingdom. If no such arrangements were made, it may be that such persons would need to demonstrate eligibility under the Immigration Rules, or seek the grant of leave to remain as a matter of discretion outside the Immigration Rules, or such persons may not be removable as removal may be an unjustifiable interference with a Convention right.[60]We do not know what the Secretary of State intended the position to be between 1 January 2021 and 7 October 2021. Two lengthy and detailed witness statements were produced on behalf of the Secretary of State for these appeals. The maker of these statements says that from 7 October 2021, the Secretary of State operated a concession and, it seems, granted leave to remain to those who had been resident in the United Kingdom before the end of the transition period. The witness statements do not, however, tell us what position the Secretary of State adopted in relation to those such as the individuals in these cases who applied for an EEA family permit before the end of the transition period but received decisions before 7 October 2021 i.e. before the concession was adopted. Furthermore, in the case of Mrs Olufiade, it appears that the Secretary of State did grant her leave to remain in the United Kingdom after the First-tier Tribunal upheld her appeal against the refusal of an EEA family permit. There is no evidence as to why that was done. Ms Smyth invited us to speculate that it was an error or, possibly, that relevant civil servants had not applied their mind to the operation of the Transitional Regulations in such circumstances. In the absence of evidence from the Secretary of State, it seems unwise to speculate. It is also unnecessary to do so as, ultimately, this case turns on the proper interpretation of the Transitional Regulations. For the reasons I have given, the Transitional Regulations do provide for the consideration, and grant, of an application for an EEA family permit made before the end of the transitional period but determined after that date where the primary carer meets the criteria described in regulation 115(e) of the 2016 Regulations.

THE SECOND ISSUE – MRS AHMAD’S APPEAL

[61]It is possible to deal with the appeal, and the respondent’s notice, in Mrs Ahmad’s case relatively shortly. Mrs Ahmad appealed to the First-tier Tribunal against the refusal of an EEA family permit on the ground that she had applied for such a permit on the basis that she was a primary carer of a British national child as well as on the basis that she was a dependent relative of an EEA national. The First-tier Tribunal had to determine whether she had made a valid application on that basis for an EEA family permit and, if so, whether she met the criteria for the grant of such a permit as a primary carer of a British national child. The First-tier Tribunal was required to address that ground of appeal but did not do so. Mrs Ahmad appealed to the Upper Tribunal on the ground that the First-tier Tribunal had failed to consider whether she was entitled to an EEA family permit on the basis that she met the criteria set out in regulation 11(5)(e) of the 2016 Regulations. The Upper Tribunal considered that the application to the entry clearance officer was only made on the basis that Mrs Ahmad was a dependent relative, not that she was a primary carer. It did not consider the appeal against the refusal of an EEA family permit on the grounds that Mrs Ahmad was a primary carer of a British national child.[62]Mrs Ahmad has consistently said that she did make an application as a primary carer, which was done by letter which she say was uploaded to the relevant Home Office website. She gives reasons why that application was a valid application under regulation 21 of the 2016 Regulations. She was entitled to have the First-tier Tribunal consider if she had made an application on this basis, and if it was a valid application, and, if so, to determine if she met the criteria in regulation 11(5) of the 2016 Regulations for the grant of an EEA family permit. An appeal against the failure of the First-tier Tribunal to determine those issues was not dealt with by the Upper Tribunal. This Court is not in a position to determine those issues. I would therefore allow the appeal and remit the matter to the First-tier Tribunal to determine those issues.

MR RAFIU

[63]It is also possible to deal with the Secretary of State’s other grounds of appeal in Mr Rafiu’s case relatively shortly. In ground 1, the Secretary of State seeks to argue that the Upper Tribunal did not address the question of whether Mr Rafiu, as the step-father of the British national child, was a primary carer within the meaning of Regulation 16(8) of the 2016 Regulations.[64]That was not the basis of the refusal of an EEA family permit by the entry clearance officer. It was not an issue raised by the Secretary of State at the First-tier Tribunal. Furthermore, it was not raised by the Secretary of State before the Upper Tribunal. The Upper Tribunal held that there was an error of law and indicated that it would remake the decision. Submissions were invited from the parties’ representatives but the presenting officer representing the Home Office stated that she had nothing to add. As the Upper Tribunal records at paragraph 24 of its reasoning, it was not contended by the Secretary of State that Mr Rafiu could not benefit from the 2016 Regulations for any reason other than that advanced by the entry clearance officer. The issue of the interpretation and application of the meaning of “primary carer” in regulation 16(8) of the 2016 Regulations was not, therefore, an issue until the Secretary of State raised it before this Court.[65]The first question is whether the Secretary of State should, now, be allowed to raise that issue. An appellate court will not generally permit a new point to be raised on appeal if that would necessitate new evidence or, had the point been advanced earlier, the hearing before the court or tribunal below would have been conducted differently. See Singh v Dass [2019] EWCA Civ 360, paragraphs 15 to 18, and Notting Hill Finance Limited v Nadeem Sheikh [2019] EWCA Civ 1337.[66]The definition of primary carer includes a person who is a direct relative or legal guardian of a child. In her written skeleton argument, Ms Smyth for the Secretary of State submitted that the Upper Tribunal failed to have regard to this issue. She submitted that Mr Rafiu was not a direct relative and that there was no evidence that he was the legal guardian of a British national child. Although Mr Rafiu was not represented at the hearing, he had formerly had counsel representing him and that counsel prepared a skeleton argument for the Court of Appeal. That raised the issue of whether Mr Rafiu had been properly appointed as a legal guardian according to Nigerian law. That, it was said, would require evidence of Nigerian law. I have no doubt that, if the Secretary of State had raised the meaning and applicability of the phrase “primary carer” before the First-tier Tribunal or before the Upper Tribunal when it remade the decision, proceedings before the relevant tribunal would have been conducted differently. There would, as a minimum, have been argument as to the meaning of “direct relative” and “legal guardian”. There may well have been evidence of Nigerian law as to the meaning of legal adoption and, possibly, evidence of the role played by Mr Rafiu in his British step-daughter’s life. It would not be appropriate, and would not be fair now, to allow this point to be raised when it was not the basis for the decision to refuse an EEA family permit, and was not an issue raised by the Secretary of State at either tribunal hearing. I would dismiss ground 1.[67]Ground 2 is that the Upper Tribunal failed properly to consider whether the British child, Mrs Olufiade’s daughter, would be unable to reside in the United Kingdom or an EEA Member State if Mr Rafiu had to be absent from the United Kingdom for an indefinite period. That issue was, however, considered by the Upper Tribunal at paragraph 24 of its reasons which is set out above. The Upper Tribunal concluded that Mr Rafiu had become the joint carer of the British national child after he married the child’s mother. He lived with Mrs Olafiude and her children, and his own children (whose mother had died) in a family unit. The Upper Tribunal concluded that it was satisfied that “Mrs Olufiade would be prevented from entering the United Kingdom and taking care of her British child without the presence of her husband”. Those were all inferences that the Upper Tribunal could reasonably draw from the evidence before it. I would therefore dismiss ground 2 of the appeal.

CONCLUSION

[68]I would allow the appeal of Mrs Ahmad and I would dismiss the appeal of the Secretary of State in Mr Rafiu’s case. 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. Mrs Ahmad contended that she had made an application, that that application was valid, and that she met the criteria. She is entitled to have the First-tier Tribunal determine those issues. Mr Rafiu was entitled to an EEA family permit if he met the relevant criteria. The Upper Tribunal concluded that he did and it was open to that tribunal on the evidence before it to reach that conclusion. LADY JUSTICE ELISABETH LAING[69]I agree. LORD JUSTICE MOYLAN[70]I also agree.

Cited in 3 later judgments