Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-005896
First-tier Tribunal No: EU/53057/2024
LE/00347/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 5 June 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN

Between

MR SAM ABDELKAHAR BOUBEKEUR
(ANONYMITY ORDER NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms S. Ferrin, counsel instructed by David Tang & Co solicitors
For the Respondent: Mr E. Terrell, Home Office Presenting Officer

Heard in person on 22 April 2026

DECISION AND REASONS

1. The Appellant is a national of Algeria, born on 8.11.02. On 1 September 2017 he was issued with a derivative residence card as the dependent child of a primary carer with a Zambrano right to reside cf. Case C-34/09 Ruiz Zambrano v Office National de l'Emploi [2012] QB 265. On 22 June 2021, he applied as a “person with a Zambrano right to reside” under the EU Settlement Scheme (EUSS). This application was refused in a decision dated 3 April 2024 on the basis that he was over the age of 18 years and had no Zambrano right to reside.

2. The Appellant appealed to the First tier Tribunal pursuant to section 3 of the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020. Following a hearing which took place on 11 September 2025, his appeal was dismissed in a decision promulgated on 31 October 2025 on the basis that he was over the age of 18 years on 31 December 2020 and he did not meet the requirements of Appendix EU.

3. An application for permission to appeal to the Upper Tribunal was made in time on 9 November 2025 on the following grounds:

(i) Ground 1: the judge erred in law in finding that as the Appellant was over the age of 18 on the specified date his appeal should be dismissed;
(ii) Ground 2: the judge erred in law in dismissing the appeal under EU11(3) as the Appellant was under 18 when he was granted a residence card and the age barrier does not apply;
(iii) Ground 3: the judge failed to consider EU11(3)(a)(ii) and (iii) and EU 13 on the basis that the Appellant is a family member of a relevant EEA citizen or qualifying British citizen i.e. his older brother and lived in same household;
(iv) Ground 4: the judge failed to consider EU12(3) and whether the Appellant is a family member of qualifying British citizen.

4. The application for permission to appeal at [36] also raises the issue that the Respondent issued the Appellant with the incorrect application form which lead to a mischaracterisation of the application and the basis of refusal and provided no findings or reasons as to the legal consequences of that error

5. This application was refused on 22 December 2025. Following a renewed application made on 30 December 2025, permission to appeal was granted by UTJ Reeds in a decision dated 17 February 2026 in, where relevant, the following terms:

“Whether or not the Respondent provided the wrong form to the Appellant, the FtTJ considered the application made as one based on a derivative right to reside (see paragraph 30) and therefore paragraphs 4-7 of the grounds are not arguable. It is arguable as set out in the grounds that the FtTJ’s consideration of the age of the Appellant was central to the outcome and the Appellant sought to advance an alternative argument paragraphs 14-16 and ground 2 paragraph 20 which does not appear to have been resolved.

2. As to grounds 3 and 4, the alternative basis of succeeding as a family member does not appear as an issue raised (see paragraph 25). As I have granted permission on the other grounds I do not restrict the grounds, but in respect of grounds 3 and 4, the Appellant’s legal representatives will be required to show that this was an issue so raised and identified before the FtTJ as an issue the FtT was asked and required to determine. The Respondent will have their note available as will Counsel.”

6. In a rule 24 response dated 2 March 2026, the Respondent opposed the appeal, stating that, with regard to Ground 2, that the Appellant was not granted leave to remain under paragraph EU3, he was granted a residence card under Regulation 20 of the Immigration (EEA) Regulations 2016 and therefore any failure by the judge to consider this argument is immaterial as it would not have changed the outcome of the appeal as the Appellant did not meet the requirements of the exemption. At [9] the Respondent submitted that at the date of application the Appellant was not under 18 and had not been granted leave under EU3 and there is no error in these findings. With regard to grounds 3 and 4 and the alleged failure by the judge to consider alternative arguments, it was noted from the Presenting Officer’s record of proceedings that there is no reference in the submissions to the Appellant meeting EU13 and EU12 of Appendix EU as these were not issues raised or identified before the judge as issues that needed to be determined.

Hearing

7. At the hearing, I had a bundle of 185 pages, an Appellant’s skeleton argument dated 6 April 2026, a bundle of authorities and a Respondent’s skeleton argument dated 17 April 2026 prepared for the error of law hearing before the Upper Tribunal.

8. I heard submissions from Ms Ferrin, who confined her arguments to Ground 2 of the grounds of appeal only. She submitted that the question is whether the judge erred with regard to EU 11 of Appendix EU. Ms Ferrin submitted that the Appellant falls within the exemption as a person with a derivative right to residence based on his father’s Zambrano right.

9. She submitted that if under the EUSS an individual is over 18, but at the time of application had leave to remain under Appendix EU, then they qualify and meet the requisite requirements. Whilst the Appellant, strictly speaking, was not granted under EU3 there was no good reason to exclude him from qualifying under EU3 and regulation 20 as they are mechanisms designed to protect individuals before and after Brexit.

10. Ms Ferrin submitted that the Appellant’s parents made EUSS applications and received ILR on 12 August 2021 [AB 106] and that his two younger siblings were now also British citizens, however, the Appellant and his older brother were refused and are both pursuing appeals.

11. In his submissions, Mr Terrell stated that he did not dispute that there were British citizen children and that the Appellant had the derivative right to reside. Mr Terrell relied on his skeleton argument and submitted that in terms of jurisdiction there were effectively two grounds of appeal: (i) whether there is a breach of the Withdrawal Agreement and (ii) whether the Appellant can meet the requirements of Appendix EU of the Immigration Rules.

12. Mr Terrell submitted that the Zambrano right is on the very outer edge of EU law as it does not require a person to be exercising treaty rights and this is why the right has to be construed fairly narrowly. He submitted that this is demonstrated in R ota Akinsanya v SSHD [2022] QB 482.

13. Whilst CD 2004/38/EC treats those under 21 as minors, the reference to the age of 18 years mirrors regulation 16(6) which was the basis of the issue of the residence card in 2017. Mr Terrell submitted that this Appellant turned 18 prior to the transition period and the date of his application made in June 2021, having turned 18 on 8 November 2020. Consequently, as at 31 December 2020, the Appellant did not enjoy a derivative right to reside as he had turned 18. He submitted that the position of the Respondent is essentially that the Appellant “aged out” and that Appendix EU does not recognise those who have a prior right which ceased prior to the relevant date.

14. As to EU 3, Mr Terrell submitted that this cannot be construed so as to include a person with a derivative right to reside under the EEA Regulations. If by 31 December 2020 the Appellant had accumulated 5 years residence and remained under 18 then he could have made an application under Appendix EU, however, the Appellant did not qualify on this basis.

15. In her reply, Ms Ferrin submitted that the issue between the parties is the interpretation of b(ii) and the principle of proportionality in EU law. She sought to rely on the judgment in Ahmad [2025] EWCA Civ 829 in relation to primary carers and maintained that the FtTJ made material errors of law.

The Relevant Law

16. EU 11 of Appendix EU provides at condition 3:

“EU11. The applicant meets the eligibility requirements for indefinite leave to enter or remain as a relevant EEA citizen or their family member (or as a person with a derivative right to reside or a person with a Zambrano right to reside) where the Secretary of State is satisfied, including (where applicable) by the required evidence of family relationship, that, at the date of application, one of conditions 1 to 7 set out in the following table is met:

Condition is met where:
3. (a) The applicant:
(iv) is a person with a derivative right to reside; or
(v)is a person with a Zambrano right to reside; or
(vi) is a person who had a derivative or Zambrano right to reside; and

(b) The applicant has completed a continuous qualifying period of five years in any (or any combination) of those categories; and
(c) Since then no supervening event has occurred in respect of the applicant.”

17. EU 14 of Appendix EU provides at condition 1:

“EU14. The applicant meets the eligibility requirements for limited leave to enter or remain where the Secretary of State is satisfied, including (where applicable) by the required evidence of family relationship, that, at the date of application, condition 1 or 2 set out in the following table is met:

Condition Is met where:
1. (a) The applicant is: …
(iv) a person with a derivative right to reside; or
(v) a person with a Zambrano right to reside; and
(b) The applicant is not eligible for indefinite leave to enter or remain under paragraph EU11 of this Appendix solely because they have completed a continuous qualifying period of less than five years; and
(c) Where the applicant is a family member of a relevant EEA citizen, there has been no supervening event in respect of the relevant EEA citizen.”

18. Annex 1 to Appendix EU provides where relevant:

“a person who, before the specified date, was a person with a derivative right to reside or a person with a Zambrano right to reside, immediately before they became (whether before or after the specified date):…

(c) a person with a derivative right to reside; or …

and who has remained or (as the case may be) remained in any (or any combination) of those categories (including where they subsequently became a family member who has retained the right of residence by virtue of a relationship with a relevant EEA citizen or with a qualifying British citizen) in addition, where a person relies on meeting this definition, the continuous qualifying period in which they rely on doing so must have been continuing at 2300 GMT on 31 December 2020.”

Decision and reasons

19. I reserved my decision which I now give with my reasons.

20. The First tier Tribunal Judge held as follows at [16]-[18]:

“16. The Appellant had to meet three key elements under EUSS to be eligible for settled or pre-settled status. Firstly the Appellant must meet the definition throughout the continuous qualifying period in the UK in which he relied on being or having been a ‘person with Zambrano right to reside’. Secondly, he had to show the continuous qualifying period in the UK was a ‘person with Zambrano right to reside’ must have begun before the specified date (11pm on the 31 December 2020 or where the Appellant was a ‘relevant EEA family permit case’ as defined in Annex 1 to Appendix EU, 11.59 on the day he arrived in the UK). Thirdly, he must meet either a continuous qualifying person in the UK as a ‘person with a right to reside’ must have been continuing at 11pm on the 31 December 2020 (unless he was a relevant EEA family permit case) and must be continuing at the date of his application under the scheme his continuous qualifying person in the UK as a ‘person with Zambrano right to reside’ must have been continuing at 11pm on the 31 December 2020 (unless he was a relevant EEA family permit case) and ended when he completed five years continuous qualifying person in the UK as such a person (and by the date of his application to the scheme there has been no supervening event), or at the date of the application to the scheme, the Appellant must be a ‘person who had a derived or Zambrano right to reside’, meaning that, before the specified date, the Appellant met (whether before or after the specified date) another qualifying category (Such as the family member of a relevant EEA citizen) and have since remained in that or another qualifying category through to the date of his application to the scheme.

17. The Appellant did not meet conditions 1, 2 and 3. The Appellant claimed to have a continuous qualifying period in the UK which began before the specified date, during which he met the definition of a ‘person with a Zambrano right to reside’ between September 2017 and 22 June 2021. However, he did not meet this definition throughout.

18. The Appellant did not meet the definition of sub paragraph (b)(ii) of the definition of a person with a Zambrano right to reside) under Annex 1 because he had not provided evidence to show he was under the age of 18. The Appellant was born on the 8 November 2002 and was over the age of 18 on the 22 June 2021. The Appellant could not be considered as a dependent child under 18 whose primary carer has a Zambrano right to reside.”

21. The FtTJ heard submissions from the Appellant’s and Respondent’s representatives and concluded as follows at [30]-[31]:

“30. I have considered the points made the parties. I accept Mr De Mello’s submissions that the Appellant had not applied under Zambrano right to reside but as someone who had derived right to reside. However, the Appellant still has to show he meets the definitions under Annex 1…

31. The Appellant was a dependent child of a Primary Carer with a Zambrano right to reside and had been given status on that basis in 2017. The Appellant was born on 8 November 2002. On the specific date (that is 31 December 2020) he was over the age of 18. Even under derived rights to reside under Annex 1, the Appellant will need to be under 18 (unless they were previously granted limited leave to enter or remain under paragraph EU3 of this Appendix as a person with a derivative right to reside and were under 18 at the date of application for that leave). That was not the case at the specified date or the date of the application., I find the Appellant does not meet the requirements under Appendix EU under either settled or pre-settled status.”

22. Ms Ferrin sought to argue that the FtTJ erred in her interpretation of EU 11 however EU 11 (3) (b) expressly states that: “The applicant has completed a continuous qualifying period of five years in any (or any combination) of those categories” ie with a derivative or Zambrano right to reside or a combination. However, by the date of application on 22 June 2021 the Appellant had not completed a continuous qualifying period of 5 years. Moreover, he was no longer under the age of 18.

23. Having heard submissions from both Ms Ferrin and Mr Terrell I have concluded that there are no material errors of law in the decision and reasons of the FtTJ. It is clear that the Appellant had not completed five years continuous residence as a person under the age of 18 by 31 December 2020. Therefore, he was not eligible for leave under EUSS. This is because the right to reside provided to him on 1 September 2017 was a derived right to reside based on the fact that his parents were granted Zambrano leave in order to remain to care for his younger siblings and he was under 18 at that time.

24. The effect of Appendix EU in this case is that the Appellant’s parents have qualified to remain under the EUSS as former Zambrano carers for his younger siblings, who are now British citizens, whereas the Appellant and also apparently another sibling do not so qualify. However, the solution is not to be found in the UK’s statutory interpretation of EU law, which does not assist him, but in making an application under the family and private life provisions of the Immigration Rules for leave to remain.

Notice of Decision

25. The decision and reasons of FtTJ Khan contains no material errors of law and her decision to dismiss the appeal is upheld.

Rebecca Chapman

Deputy Upper Tribunal Judge Chapman

19 May 2026