Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: UI-2022-003057
EA/11506/2021

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 28 March 2023

Before

UPPER TRIBUNAL JUDGE MANDALIA

Between

MISS AMANDEEP KAUR
(NO ANONYMITY DIRECTION)
Appellant
And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr L Singh, Kewalion & Co Solicitors
For the Respondent: Mr C Williams, Senior Home Office Presenting Officer

Heard at Birmingham Civil Justice Centre on 26 January 2023

DECISION AND REASONS
Introduction
1. The appellant is a national of India. On 12th December 2020 she made an application under the EU Settlement Scheme for leave to remain as a dependent relative of an EEA citizen. The appellant’s sponsors were her sister, Rajwinder Kaur and her brother-in-law, Harkamal Preet Mann, both of whom are Portuguese nationals. The respondent refused that application for reasons set out in a decision dated 16th June 2021. The respondent said:
“Careful consideration has been given as to whether you meet the eligibility requirements for settled status under the EU Settlement Scheme. The relevant requirements are set out in rule EU11 of Appendix EU to the Immigration Rules. You state that you are a dependent relative of a relevant EEA citizen. However, you have not provided any evidence to confirm this. The reasons for this are explained below.
The required evidence of family relationship for a dependent relative of a relevant EEA citizen, where the dependent relative does not have a documented right of permanent residence, is a valid family permit or residence card issued under the EEA Regulations (or by the Bailiwick of Jersey, the Bailiwick of Guernsey or the Isle of Man) as the dependent relative of that EEA citizen and evidence which satisfies the Secretary of State that the relationship continues to subsist. Home Office records do not show that you have been issued with a family permit or residence card under the EEA Regulations as a relative of an EEA national who was a dependant of the EEA national or of their spouse or civil partner, a member of their household or in strict need of their personal care on serious health grounds, and you have not provided a relevant document issued on this basis by any of the Islands.
Home Office records do not show that you have been issued with a residence card under the EEA Regulations as a relative of an EEA citizen who was a dependant of the EEA national or of their spouse or civil partner, a member of their household or in strict need of their personal care on serious health grounds, and you have not provided a relevant document issued on this basis by any of the Islands…”
2. The appellant appealed and her appeal under the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020, was dismissed by First-tier Tribunal Judge Aziz for reasons set out in a decision promulgated on 9th May 2022.
The decision of First-tier Tribunal Judge Aziz
3. Judge Aziz noted, at [3], that the appellant had applied for leave to remain under the EU settlement scheme. The hearing before Judge Aziz proceeded by way of submissions only. The parties submissions are recorded at paragraphs [10] to [12] of the decision. At paragraph [19], Judge Aziz said:
“I have familiarised myself with Article 10. Given how lengthy Article 10 is, I will not unnecessarily lengthen this determination by reproducing it. However, I concur with the observations made by the respondent. Article 18 will only apply to an applicant if they fall within the scope of the Withdrawal Agreement as set out at Article 10. The appellant does not fall within the category of person who can rely upon Article 18. She is someone who had entered the United Kingdom in 2015 on a visit visa and overstayed. She never sought to regularise her stay and whilst she may feel hard done by (understandably so) because those representing her at the time made the wrong application on her behalf, I have to deal with the facts “as they are”. Whilst I therefore have some level of sympathy for the appellant, she is not able to rely upon Article 18 of the Withdrawal Agreement for the sears set out in this paragraph. In turn, I find that the basis upon which her application was initially refused by the respondent is correct. Namely, that the appellant did not meet the eligibility requirements to qualify under the EU settlement scheme.”
The grounds of appeal
4. The appellant claims Judge Aziz misdirected himself in law, failed to make findings on material matters and failed to give adequate or cogent reasons for his decision. The appellant claims she had applied for a document before the specified date (11pm on 31 December 2020) albeit that was an EUSS application rather than an application under the Immigration (European Economic Area) Regulations 2016. The appellant claims Judge Aziz failed to explain why the appellant does not fall within the scope of Article 10 of the Withdrawal Agreement, and erroneously concluded the appellant cannot rely upon Article 18 of the Withdrawal Agreement without first demonstrating qualification under Article 10. It is claimed Judge Aziz omitted to engage properly with the Withdrawal Agreement, and fails to explain, why, as a dependent relative of the sponsors, the appellant does not have a right to reside in the UK under Article 13, as set out in the Articles of Directive 2004/38/EC referred to in Article 13.
5. Permission to appeal to the Upper Tribunal was granted by First-tier Tribunal Judge Hollings-Tennant on 31st May 2022. The appeal was listed before me to determine whether there is a material error of law in the decision of the First-tier Tribunal Judge, and if so, to remake the decision.
The hearing before me
6. At the outset of the hearing before me, Mr Singh, quite properly in my judgement, acknowledged that the decisions of the Upper Tribunal in Celik (EU exit; marriage; human rights) [2022] UKUT 00220 (IAC) and Batool & Ors (other family members: EU exit) [2022] UKUT 00219 (IAC) now pose the appellant’s appeal significant difficulties. Those decisions post-date the decision of Judge Aziz and the appellant’s grounds of appeal.
7. Mr Singh applied for a stay of the appeal. He submits the decision of the Upper Tribunal in Celik is the subject of an application for permission to appeal that is now before the Court of Appeal. He was unable to draw my attention to the grounds of appeal being advanced before the Court of Appeal and neither was he able to provide me with any further details about the application before the Court of Appeal, including whether permission to appeal has been granted. I refused the application for a stay of this appeal. In the absence of any information regarding the application for permission to appeal before the Court of Appeal let alone confirmation that permission to appeal has been granted by the Court of Appeal, it is not in my judgment in the interests of justice or in accordance with the overriding objective for the hearing of this appeal to be unnecessarily delayed.
8. Mr Singh simply adopted the grounds of appeal. He did not make any further submissions as to the grounds of appeal advanced. I did not call upon Mr Williams to respond.
Discussion
9. The appellant claims she falls within the ambit of article 10(3) of the EU Withdrawal Agreement as she had applied for facilitation of her stay in the UK prior to the end of the transition period on 31 December 2020. The respondent’s case is that the appellant does not fall within the ambit of Article 10(3) as the application made, as the appellant accepts, was not one under the EEA Regulations, but one under the EUSS for a family permit.
10. The Immigration (Citizens Rights Appeals) (EU Exit) Regulations 2020 (SI 2020/61) grant a right of appeal to those refused leave to enter under the EUSS Family Permit provisions of the Immigration Rules. The permissible grounds of appeal are set out in reg. 8 and provide, so far as is relevant:
“Reg. 8 - Grounds of appeal
(1) An appeal under these Regulations must be brought on one or both of the following two grounds.
(2) The first ground of appeal is that the decision breaches any right which the appellant has by virtue of-”
(a) [Chapter 1, or Article 24(2), 24(3), 25(2) or 25(3) of Chapter 2] , of Title II [, or Article 32(1)(b) of Title III,] of Part 2 of the withdrawal Agreement,
(3) The second ground of appeal is that-”
(a) where the decision is mentioned in regulation 3(1)(a) or (b) or 5, it is not in accordance with the provision of the immigration rules by virtue of which it was made;
(b) where the decision is mentioned in regulation 3(1)(c) or (d), it is not in accordance with residence scheme immigration rules;
(c) where the decision is mentioned in regulation 4, it is not in accordance with section 76(1) or (2) of the 2002 Act (as the case may be);
(d) where the decision is mentioned in regulation 6, it is not in accordance with section 3(5) or (6) of the 1971 Act (as the case may be) [;]
The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people.”
11. Article 10 of the Withdrawal Agreement provides, so far as is relevant
“2. Persons falling under points (a) and (b) of Article 3(2) of Directive 2004/38/EC whose residence was facilitated by the host State in accordance with its national legislation before the end of the transition period in accordance with Article 3(2) of that Directive shall retain their right of residence in the host State in accordance with this Part, provided that they continue to reside in the host State thereafter.
3. Paragraph 2 shall also apply to persons falling under points (a) and (b) of Article 3(2) of Directive 2004/38/EC who have applied for facilitation of entry and residence before the end of the transition period, and whose residence is being facilitated by the host State in accordance with its national legislation thereafter.”
12. Article 3(2) of the Citizenship Directive provided:
“2. Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons:
(a) any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen;
(b) the partner with whom the Union citizen has a durable relationship, duly attested.”
13. Regulation 21of the EEA Regulations provides, so far as is relevant.
“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.
(3) An application for a residence card or a derivative residence card must be submitted while the applicant is in the United Kingdom.
(4) When an application is submitted otherwise than in accordance with the requirements in this regulation, it is invalid.
..”
14. As Mr Singh quite properly acknowledged, the reported decisions of the Upper Tribunal in Celik (EU exit; marriage; human rights) [2022] UKUT 00220 (IAC) and Batool & Ors (other family members: EU exit) [2022] UKUT 00219 (IAC), that post-date the decision of First-tier Tribunal Judge Aziz, do pose significant difficulties for the appellant.
15. At paragraphs [51] to [53], the Upper Tribunal in Celik said:
“51. Article 3(2) of Directive 2004/38/EC requires Member States to “facilitate entry and residence” for “any other family members” who are dependents or members of the household of the Union citizen; or where serious health grounds strictly require the personal care of the family member by the Union citizen. A person is also within Article 3.2 if they are a “partner with whom the Union citizen has a durable relationship, duly attested”. For such persons, the host Member State is required to “undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people”.
52. There can be no doubt that the appellant’s residence in the United Kingdom was not facilitated by the respondent before 11pm on 31 December 2020. It was not enough that the appellant may, by that time, have been in a durable relationship with the person whom he married in 2021. Unlike spouses of EU citizens, extended family members enjoyed no right, as such, of residence under the EU free movement legislation. The rights of extended family members arose only upon their residence being facilitated by the respondent, as evidenced by the issue of a residence permit, registration certificate or a residence card: regulation 7(3) and regulation 7(5) of the 2016 Regulations.
53. If the appellant had applied for facilitation of entry and residence before the end of the transition period, Article 10.3 would have brought him within the scope of that Article, provided that such residence was being facilitated by the respondent “in accordance with … national legislation thereafter”. This is not, however, the position. For an application to have been validly made in this regard, it needed to have been made in accordance with regulation 21 of the 2016 Regulations. That required an application to be submitted online, using the relevant pages of www.gov.uk, by post or in person, using the relevant application form specified by the respondent; and accompanied by the applicable fee.”
16. In paragraph [56] of its decision, the Upper Tribunal went on to say:
“The above analysis is destructive of the appellant’s ability to rely on the substance of Article 18.1. He has no right to call upon the respondent to provide him with a document evidencing his “new residence status” arising from the Withdrawal Agreement because that Agreement gives him no such status. He is not within the terms of Article 10 and so cannot show that he is a family member for the purposes of Article 18 or some other person residing in the United Kingdom in accordance with the conditions set out in Title II of Part 2.”
17. If there were any doubt, in Batool & Ors, the Upper Tribunal confirmed:
“(1) An extended (oka other) family member whose entry and residence was not being facilitated by the United Kingdom before 11pm GMT on 31 December 2020 and who had not applied for facilitation of entry and residence before that time, cannot rely upon the Withdrawal Agreement or the immigration rules in order to succeed in an appeal under the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020.
(2) Such a person has no right to have any application they have made for settlement as a family member treated as an application for facilitation and residence as an extended/other family member.”
18. It is unnecessary to recite the full principles set out in those decisions. As the Upper Tribunal in Celik had pointed out, Article 3 of Directive 2004/38/EC requires member states to facilitate entry and residence for any other family members. In Celik’s case, the appellant’s residence in the UK was not facilitated by the respondent before the end of the relevant transition period, nor did he apply for such facilitation (64). It was not enough that the appellant may by that time have been in a durable relationship with the person whom he later married in 2021. Unlike spouses of EEA nationals, extended family members enjoyed no such right of residence under the EU free movement legislation and their rights only arose upon their residence being facilitated by the respondent as evidenced by the issue of a residence permit (52).
19. If the appellant had applied for facilitation of residence before the end of the transition period, Article 10.3 of the Withdrawal Agreement would have brought her within the scope of that Article but that was not the case in Celik, nor is it the case in this appeal. As the Tribunal said in Batool, an extended (oka other) family member whose entry and residence were not being facilitated by the United Kingdom before 11pm GMT on 31 December 2020 and who had not applied for facilitation of entry and residence before that time, cannot rely upon the Withdrawal Agreement or the immigration rules in order to succeed in an appeal.
20. Here, Judge Aziz noted, at [17], the entirety of the appellant’s case rested on the respondent’s conduct and how the respondent dealt with the appellant’s application. The respondent had not pointed out to the appellant that she had, in essence, made the wrong application and that she should have applied under the 2016 EEA Regulations, and therefore the decision to refuse the application was in breach of Article 18 of the Withdrawal Agreement.
21. As is clear from the legal framework that I have set out, there is a fundamental distinction between a “family member” and “any other family members” for the purposes of the Directive 2004/38/EC. In order to fall within Article 3(2) the ‘other family member’ must be a dependant or member of the household of the Union citizen in the country from which they have come; or there must be serious health grounds strictly requiring the personal care by the Union citizen. A host Member State is required by Article 3(2) to “undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people”. The purpose of granting such rights is to protect the right to free movement of the Union citizen, rather than to protect family life. Importantly, even if a person satisfies the requirement to be an ‘other family member’, Member States are under no obligation to accord that person a right of entry and residence. The obligation is merely to “facilitate” entry and residence. Until 31 December 2020, the Directive was implemented in the United Kingdom by means of the 2016 Regulations. The Regulations described other family members as “extended family members”. Provision was made in regulations 12(4) and (5) and 18(4) and (5) for the issue of EEA family permit and residence cards to extended family members.
22. In Batool & Others, the Upper Tribunal said, at [61], that from the formal introduction of the EUSS on 30 March 2019 until 31 December 2020, EEA citizens and their family members could apply either under the 2016 Regulations or under the EUSS. The Upper Tribunal referred to the publicly available guidance on the www.gov.uk website. It went on to say:
“63. As is evident from the website, persons were told in plain terms that family members could apply as such for a family permit or under the EUSS. However, in order to apply under the EUSS, they must be a “close” family member. That was expressly contrasted with the “extended” family member, who could apply for an EEA family permit until 31 December 2020, but not under EUSS.
64. As we have seen from Article 10 of the Withdrawal Agreement, in order to fall within the scope of Part 2 (and, thus, Article 18) a person asserting to be an ‘other family member’ must have “applied for facilitation of entry and residence before the end of the transition period”.
23. There is therefore a fundamental difference between leave under the EUSS and a permit under the EEA Regulations. The appellant had not, as at 31 December 2020, applied for facilitation of residence by making the required application for an EEA family permit before the end of the transition period. She did not therefore come within the personal scope of the Withdrawal Agreement. The reality is that, as a person who fell within article 3(2) of the Citizenship Directive, (as opposed to article 2 (2) which relates to family members of EEA nationals ) the only right the appellant had prior to 31 December 2020 was a right to have her application “facilitated”.
24. Member States have a wide discretion as regards the selection of the factors to be taken into account. Nonetheless, Member States must ensure that their legislation contains criteria which are consistent with the normal meaning of the term ‘facilitate’ and which do not deprive that provision of its effectiveness (see, to that effect, judgment of 5 September 2012, Rahman and Others, C‑83/11, EU:C:2012:519, paragraph 24). It is entirely permissible for the respondent to require a specific form of application and the mandating of a specific application form, available freely and indeed online, is consistent with “facilitate”.
25. Quite simply, the appellant failed to make her application as required under the EEA Regulations and on that basis, the appellant did not fall within the scope of Article 10(3)of the Withdrawal Agreement. There was no basis upon which either the respondent or the Tribunal could exercise discretion to treat what was on its face an application under the EUSS as an application for ‘facilitation’ under the EEA Regulations. The appellant here did not apply for facilitation of residence before the end of the transition period and her residence in the UK was not facilitated by the respondent prior to 11pm on 31 December 2020. Following Batool and Celik, the appellant cannot rely on the Withdrawal Agreement and her appeal was therefore bound to fail.
26. The decision reached by Judge Aziz, although brief, is not in the circumstances vitiated by a material error of law. It was open to Judge Aziz to dismiss the appeal for the reasons set out in his decision, and it follows that I dismiss the appeal before me.

Notice of Decision
27. The decision of First-tier Tribunal Judge Aziz is not vitiated by a material error of law and his decision stands.
28. The appeal before me is dismissed.

Signed V. Mandalia Date 26th January 2023

Upper Tribunal Judge Mandalia