Tribunal decisions

The decision

Case No: JR-2025-LON-001061
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR

29th October 2026
Before:

UPPER TRIBUNAL JUDGE RIMINGTON

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Between:

THE KING
on the application of
JUMANA JUZER KHOKHRI
Applicant
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SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
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No attendance
(Abbotts Solicitors on record) for the applicant

Ms K Elliot
(instructed by the Government Legal Department) for the respondent

Hearing date: 29th July 2026 at Field House

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J U D G M E N T

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Judge RIMINGTON:
1. The applicant challenges, by way of judicial review, the Secretary of State’s decision dated 7th January 2025 (the Decision) which rejected as invalid the applicant’s application under the EU Settlement Scheme (EUSS), specifically under paragraph EU10(1) of Appendix EU to the Immigration Rules.
2. The key issue in this matter is whether under EU9 (c) of Appendix EU of the Immigration Rules the Secretary of State has a discretion to accept the application of a non-EEA national despite the validity requirement under EU9(c) not being met and the interpretation of EU9(c).
3. The applicant, a Kenyan national born on 24th October 1982, is married to Mr Juzer Moizali Amirali Khokhri, a British Citizen. She previously sought entry to the United Kingdom under Appendix EU (Family Permit) for a family permit but was refused on 17th March 2022. That refusal was challenged to the First-tier Tribunal but withdrawn by the Secretary of State on 23rd September 2022. The applicant entered the UK on 20th February 2024 on the granted EUSS family permit. She then made a paper EUSS application as a family member of a qualifying British citizen from outside the UK. This was rejected in the Decision on 7th January 2025.
4. The Decision set out as follows:
‘Why your application is not valid
For your eligibility under the scheme to be considered, you need to make a valid application. The requirements for a valid application are set out in paragraph EU9 of Appendix EU to the Immigration Rules. You can find out more about the requirements here: www.gov.uk/settled-status-eu-citizens-families/eligibility.

To make a valid application from outside the UK, the required proof of entitlement to apply from outside the UK must be provided. You have not provided the required proof of entitlement to apply from outside the UK as part of your application (unique application number (UAN): [enter UAN]) and, therefore, this application has been rejected as invalid. The reasons for this are set out below.

Your application did not meet this requirement because you do not hold a valid ‘specified relevant document’, namely a residence card, permanent residence card or derivative residence card issued by the UK under the EEA Regulations on the basis of an application made on or after 6 April 2015, or a biometric residence card issued by virtue of having being granted limited leave to enter or remain under Appendix EU.

For an application to be valid, the required proof of identity and nationality must be provided. You have not provided the required proof of identity and nationality as part of your application (unique application number (UAN): 35722025) and, therefore, this application has been rejected as invalid. The reasons for this are set out below.

Your application did not meet this requirement because we are not satisfied that the national identity card that you provided is genuine. This is because after assessment, the national identity card was deemed unacceptable as evidence of identity and nationality because this department were not satisfied that it is a genuine document. This document has been retained by the Home Office.

Therefore your application has been rejected as invalid. The rejection of this application will not have an impact on any further application that you submit.

Information for those who require assistance with the required application process (the assisted digital route) and on other approved ways of making a valid application is available here: www.gov.uk/settled-status-eu-citizens-families/applying-for-settled-status.

Making a further application

If you have additional information or evidence that shows you meet the requirements, you can make another application under the EU Settlement Scheme online at: https://apply-for-eu-settled-status.homeoffice.gov.uk.

The relevant deadline for an application to have been made was normally 30 June 2021 for those applying based on their UK residence before 23:00 GMT on 31 December 2020. To make a further application, the deadline that applies to you must not have passed or there must be reasonable grounds for your delay in making an application after the relevant deadline. Please see: www.gov.uk/settled-status-eu-citizens-families for guidance on the relevant deadline that applies to you.’
Grounds for judicial review
5. Ground (i). The application form expressly acknowledged at page 5 that it was open to the applicant to provide alternative evidence when applying from a country that does not allow sending of documentation across borders. When applying from outside the UK the form states that applicant can provide ‘alternative evidence of this where you are unable to produce the required document due to circumstances beyond your control or due to compelling practical or compassionate reasons (you will also need to provide evidence of these circumstances or reasons)’.
6. The applicant could provide alternative evidence to show proof of entitlement. The applicant had set out reasons in her cover letter of 12th August 2024 relating to the health of her four-year daughter (diagnosed with enlarged adenoids and causing sleeping difficulties and colds and respiratory infections). She could not remain in the UK to resolve her pre-settled status. She removed to Kenya which does not permit identity documents to be posted across national borders, and her application was submitted without her passport.
7. The applicant had sent copies of relevant documents, but the Decision maker was not aware of and did not apply any discretion when considering the application.
8. Further the respondent had not considered her own ‘Validation, variation, voiding and withdrawal of applications’ guidance, Version 9, whereby if the applicant had given a good reason ‘why they could not provide the required document you may ask them to provide alternative satisfactory evidence of their evidence and identity’.
9. Ground (ii). The Decision failed to take into account relevant matters, and this undermined the fairness and integrity of the Decision.
10. Ground (iii). The applicant’s previous application for an EUSS family permit as a ‘family member of a qualifying British citizen’ (FMQBC) was granted, upon appeal, by the respondent herself and the guidance ‘EU Settlement Scheme applying from the outside the UK’, confirmed that the applicant could use the same evidence used to apply for her EU Settlement Scheme family permit where ‘you have one’. This too was an application as part of the EUSS.
11. Ground (iv). There was procedural unfairness and a failure to follow policy on dealing with false documents. The applicant was not afforded any opportunity to respond to the allegation of false documents before the Decision and contrary to R v Home Secretary ex p. Doody [1994] 1 AC 531 [570] and Bank Mellat v HM Treasury (no.2) [2013] UKSC 39 and R (Karagul) v Secretary of State for the Home Department [2019] EWHC 3208 (Admin) at [103] and R (Tazeem) v S Secretary of State for the Home Department [2023] EWHC 1828 at [70]. The applicant was significantly detrimentally affected by the Decision.
12. Ground (v). The burden of proof fell on the respondent to prove that the applicant’s ID card is not genuine. The policy of the respondent on ‘Document Verification’ version 1.0. was such that the respondent must accept the document at face value. The respondent was obliged to act in accordance with published policy as per Lumba v Secretary of State for the Home Department [2011] UKSC 12 [35]. Further to RP (proof of forgery) Nigeria [2005] UKAIT 00086 an allegation of forgery needed to be provided by evidence by the person making it not a bare allegation of forgery.
13. Ground (vi). There was a failure to have regard to the best interests of the child further to s55 of the Borders Citizenship and Immigration Act 2009.
Refusal of permission for judicial review
14. UTJ Mahmood refused permission to bring judicial review proceedings on the basis that the application had not been rejected due to the applicant’s failure to submit their passport. The real issue was whether the applicant had used the correct application process. The application was rejected because the applicant had never been issued with an EEA or EUSS [Biometric Residence Card] ‘BRC’ and therefore the applicant could not meet the requirement of EU9(c). The published guidance only applied to those entitled to apply to the EUSS from outside the UK and the applicant was not. The grounds were wholly unarguable in respect of the false Kenyan identity but in any event the application would fail under EU9.
Grant of permission
15. Following a grant of adjournment to the applicant for the oral permission hearing on 29th November 2025, permission to apply for judicial review was granted by UTJ Hoffman on 19th January 2026 in the following terms.
(1) Paragraph EU9(c) of Appendix EU to the Immigration Rules requires an applicant seeking leave to remain under the EUSS to provide the “required proof of entitlement to apply from outside the UK”. Annex 1 to Appendix EU defines the “required proof of entitlement to apply from outside the UK” in seemingly clear terms: in the case of a non-EEA national, the applicant must produce “their valid specified relevant document”. A “specified relevant document” is in turn defined as a residence card, permanent residence card or derivative residence card issued under the EEA Regulations on the basis of an application made on or after 6 April 2015 and which has not expired by more than 18 months; or a biometric residence card falling within sub-paragraph (a)(iii) of the definition of “relevant document”.

(2) However, the definition also states that the Secretary of State “may accept alternative evidence of entitlement to apply from outside the UK where the applicant is unable to produce the required document due to circumstances beyond their control or to compelling practical or compassionate reasons”. At first sight, that wording appears to presuppose that the applicant has been issued with a “specified relevant document”, but is unable to access it, such that alternative evidence may be accepted.
In the present case, the applicant does not claim ever to have held a “specified relevant document”, although Mr Broachwalla submitted that this may not be the intended or correct reading of the provision.

(3) Having considered the parties’ submissions, I am satisfied that paragraph EU9(c), when read alongside the definition of “required proof of entitlement to apply from outside the UK”, contains sufficient ambiguity to justify the grant of permission. That is for two connected reasons:

a. First, prior to returning to Kenya to obtain medical treatment for her daughter, the applicant was in the UK on an EUSS family permit. Had she applied under Appendix EU before leaving, she would not have been required to satisfy paragraph EU9(c). Yet, by applying from Kenya, she became subject to that requirement. The respondent has been unable to explain why, if paragraph EU9(c) does indeed require an applicant who previously held an EUSS family permit to produce a “specified relevant document”, such a requirement applies only when the application is made from outside the UK.

b. Second, the respondent’s published guidance EU Settlement Scheme: applying from outside the UK states that an applicant must provide proof of their identity, continuous residence, relationship to their family member, and the family member’s identity and continuous residence. It does not state that the applicant must also produce a “specified relevant document” as defined in Annex 1 to Appendix EU.’
16. It was acknowledged in the grant of permission that ground 4 could only succeed if the applicant was successful on the first three grounds and ground 6 was likely to stand or fall with the other grounds. Permission was refused, however on ground 5.
Legal Framework
17. Appendix EU to the Immigration Rules sets out the requirements for an EEA citizen, their family members and the family members of a qualifying British citizen in order to be granted indefinite or limited leave to enter or remain.
18. The material parts of Appendix EU to the Immigration Rules in this instance are as follows (my underlining):
“EU9. A valid application has been made under this Appendix where:

(a) It has been made using the required application process;

(b) The required proof of identity and nationality has been provided, where the application is made within the UK;

(c) The required proof of entitlement to apply from outside the UK has been provided, where the application is made outside the UK;

(d) The required biometrics have been provided;

(e) It has been made by the required date, where the date of application is on or after 9 August 2023; and

(f) The applicant, if they rely on being a joining family member of a relevant sponsor and where the date of application is on or after 9 August 2023, is not a specified enforcement case.

EU10. (1) An application made under this Appendix will be rejected as invalid where it does not meet the requirements in paragraph EU9.”

The ‘required proof of entitlement to apply from outside the UK’ is defined in Annex 1 to Appendix EU as:

“a) in the case of an EEA citizen (in accordance with subparagraph (a) of that entry in this table):
(i) their valid passport; or
(ii) their valid national identity card, where this contains an interoperable biometric chip,

unless the Secretary of State agrees to accept alternative evidence of entitlement to apply from outside the UK where the applicant is unable to obtain or produce the required document due to circumstances beyond their control or to compelling practical or compassionate reasons; or

(b) in the case of a non-EEA citizen, their valid specified relevant
document,

unless the Secretary of State agrees to accept alternative evidence of entitlement to apply from outside the UK where the applicant is unable to produce the required document due to circumstances beyond their control or to compelling practical or compassionate reasons

in addition, ‘valid’ here means that the document is genuine and has not expired or been cancelled or invalidated”
19. ‘Specified relevant document’ is defined in Annex 1 to Appendix EU as:
“(a) within the meaning of sub-paragraph (a)(i)(aa) of the entry for ‘relevant document’ in this table, a residence card, permanent residence card or derivative residence card which:

(i) was issued by the UK under the EEA Regulations on the basis of an application made on or after 6 April 2015;

(ii) has not expired by more than 60 months at the date of application; or

(b) a biometric residence card as described in sub-paragraph (a)(iii) of the entry for ‘relevant document’ in this table which has not expired by more than 60 months at the date of application

‘Relevant document’ under (a)(iii) is defined as

…

‘(iii) a biometric residence card issued by virtue of having been granted limited leave to enter or remain under this Appendix;
20. The ‘required application process’ set out in Annex 1 to Appendix EU states:
required application process

(a) (unless sub-paragraph (b) or
(c) applies) the relevant on-line application form and a relevant process set out in that form for:
(i) providing the required proof of identity and nationality or (as the case may be) the required proof of entitlement to apply from outside the UK; and
(ii) providing the required biometrics;
21. The guidance in Validation, variation voiding and withdrawal of applications Version 9.0 published on 14th November 2023 states at page 4
‘This guidance does not apply to applications made under Appendix EU. See: EU Settlement Scheme caseworker guidance.’
22. The Immigration (Provision of Physical Data) Regulations 2006 includes that
‘application’ means

2(e) ‘an application for leave to enter or remain in the United Kingdom made under Appendix EU to the immigration rules’

Regulation 3 confirms that

‘3. Subject to regulations 4 and 5 , an authorised person may require an individual who makes an application [or an entrant] to provide a record of his fingerprints and a photograph of his face.’
The Hearing.
23. At the hearing no counsel appeared (or was instructed) on behalf of the applicant.
24. On 17th July 2026 the applicant made an application to file documentation out of time. There had already been an objection by the respondent pointing out that the applicant had already had the benefit of two previous extensions of time and this was refused. On 24th July 2026 an application by the applicant for an adjournment owing to a lack of resources was refused.
25. On 29th July 2026 (the day of the hearing) the applicant made a written application to set aside my previous orders dated 17th July 2026 and 24th July 2026. The legal representatives (who advised they were now acting pro bono) also applied in writing to submit a witness statement on behalf of the applicant and a skeleton argument (notwithstanding it was filed outside the prescribed timetable) and stated:
‘These applications arise from the Applicant's inability to secure funding for legal representation at the substantive hearing. The Applicant has exhausted the legal funding previously available to her and has no financial means to privately fund continued representation or advocacy.’
26. I noted that the applicant complained in her witness statement of the length of time this process had taken and at the same time advanced that another three months adjournment was proportionate. She also stated that she could not foresee, at the outset of the proceedings, that the JR hearing would take this long and could not have seen the scale and complexity of the case once permission was granted. I note at all times the applicant was legally represented. The material filed by the respondent was indeed in response to the judicial review application brought by the applicant.
27. The application did not explain what funding would be secured in three months’ time and there was no correspondence in relation to any application for legal aid. It was the respondent’s understanding that the applicant was now living in India. The case management directions had been issued on 19th January 2026 and there had been six months to submit any paperwork or to secure funds for representation.
28. I note the same counsel had settled grounds and the skeleton argument. The applicant has had specialist legal advice at the start of this process and throughout and will have been advised on the grounds and the possible costs to be incurred. She would also have been advised of the case management directions and the timeline for the submission of documentation.
29. The hearing date, time and venue was notified to the parties on 27th May 2026 and there has been ample time to resolve, finance and secure representation. As identified above, the same counsel has drafted the paperwork notwithstanding the change in solicitors. The applicant herself chose to change her solicitors on 8th July 2026 which in itself would have incurred further costs and possible delay.
30. The same specialist immigration counsel drafted the original cover letter for the application, the JR grounds which were amply set out, and the skeleton argument and thus the applicant has been afforded an adequate opportunity to participate in the proceedings. It was submitted in the skeleton argument that the aspects of the respondent’s case concerning the applicant’s daughter’s medical circumstances and the interpretative submissions advanced in the respondent’s evidence had not been before the applicant, but the position was in fact set out in the Acknowledgment of Service. The extent of participation has been determined by the applicant but in order to facilitate her participation, in the circumstances, I admitted the witness statement and the skeleton argument. The Secretary of State had provided the JR bundle, and the authorities bundle which was in fact the responsibility of the applicant.
31. At the hearing before me, the Secretary of State objected to the application to vacate the hearing.
32. There are significant resource issues for the Upper Tribunal when hearings are vacated and a whole day had been set aside for this judicial review hearing and ample notice given to the applicant. When considering the overall circumstances in the light of fairness and the overriding objective under Rule 2 of the Tribunal Procedure (Upper Tribunal) Rules 2008, I was not persuaded that there should be any further adjournment.
Submissions
33. Ms Elliot submitted that the family (including a further child born after the application) now lived in India. Having secured an EUSS family permit, the applicant was enabled to travel to the UK. Following the United Kingdom’s exit from the European Union, the applicant needed to apply under the new legislative framework because she is a non-EU national seeking to join her British family member. She had two options.
34. The first was that had she been issued with a biometric card under the Immigration (European Economic Area) Regulations 2016 or a biometric residence card under Appendix EU she could apply from outside the UK.
35. Alternatively, she needed to be physically present in the UK to make an EUSS application. This would have required an EUSS family permit or alternative visa to enable her to travel to make the EUSS application under Appendix EU within the UK. She could have applied under any other route to enter to make the same application.
36. The applicant applied for a EUSS family permit on 5th September 2022 and eventually was granted the same following appeal proceedings, which were settled by consent. She was granted a family permit valid from 22nd November 2023 to 22nd May 2024 (six months). During that period, she could come and go and make an EUSS application under Appendix EU. Indeed, the applicant entered the UK on 20th February 2024 and had three months left on her family permit. At that time, she had access to the same specialist immigration adviser. She however left on 9th March 2024 and did not return. Then she could no longer apply for an EU family permit because the deadline expired in August 2023. She could, however, have applied for leave to enter by another immigration route to facilitate her application in the UK.
37. On 27th July 2024, 2 months after the applicant’s permit expired her lawyer Mr Jafferji contacted the Secretary of State to ask what she should do and was advised clearly that the applicant would need to return to the UK to make her EUSS application. She was given clear advice by the Resolution Centre that she needed to return to make the application and that telephone advice was on record. She needed a biometric residence card to apply from outside the UK. Despite the advice two weeks later in July 2024 on the 12th August 2024 the applicant sought to apply from Kenya and stated she had not been able to make an EUSS application as her family needed to go abroad to seek medical treatment for her daughter. There was no explanation why she could not secure treatment in the UK and no explanation why she had to leave or could not return in the period of validity left. There was no reasonable explanation during the life of the visa. Two and half months was ample time to make the application in the UK. Biometrics for the purpose of an EUSS application cannot be provided outside the UK.
38. The health condition of the child was identified in 2023 by doctors in Kenya and known when she sought to enter the UK on the family permit. That was evident from the medical documentation. The child had been under medical care since at least January 2023 and thus the child’s condition had had no bearing on the applicant’s case and notwithstanding this had been included in the submissions to the Secretary of State.
39. The applicant had also provided a document claiming to be a Kenyan identity card which was found to be fraudulent. The application was however, rejected as invalid under EU 10(1) and a case note produced to that effect and thus the application could only be rejected. The CID case notes included that the ‘ID provided has been retained by PM Techs as deemed non genuine’.
40. Any reliance on EU(9)(b) in the Decision does not assist the applicant. EU(9)(b) was not relevant as she was applying outside the UK. That was an error but not material.
41. Turning to the actual grounds of challenge, grounds (i) and (ii) were the same argument that the Secretary of State had a discretion, but this was not so under the relevant rule when the construction of the rule was examined. There was no discretion. EU9(c) specifies that the applicant ‘is unable to produce the required document due to their circumstances’. The entitlement to apply stems from having a valid specified required document (the BRC) and that is shown by providing the document with the EUSS application. It is only if the applicant is unable to provide the document, which the applicant already possesses, that the applicant then provides evidence of those reasons why it is not produced and which reasons can be considered. The reasons provided must be adequate. It is rational to stipulate that the applicant must prove that they are the person asserted.
42. Ground (iii) asserted that because the applicant had previously been granted an EUSS family permit the respondent should again accept her EUSS application. Those were entirely separate applications and engaged entirely different considerations. On ground (iv) any representations would be pointless because she had never had a BRC. Ground (v) was not granted permission and (vi) took the application nowhere.
43. Ms Elliot accepted in relation to ground (vi) that s55 of the Borders Citizenship and Immigration Act 2009 applied in spirit, but this did not mandate the outcome that the respondent had to accept an invalid EUSS application. The best interests of the child did not point to one conclusion and even if they had, were outweighed by the force of other considerations not least the importance of the requirements under EU 9(c). This was not a case dealing with family life in the UK or reunification. The family had resided for almost its entire life outside the UK, mostly in Kenya. Medical treatment for the child was being provided abroad and the applicant herself stated she left the UK because she could not secure treatment for the child here. It appears the husband is now employed in India.
44. On behalf of the applicant, the written skeleton argument cited Kaur and Others v Secretary of State for the Home Department [2025] EWCA Civ 1474 [26]-[27], which set out that the Immigration Rules are not to be construed with all the strictness of application in the construction of a statute or statutory instrument but ‘instead sensibly according to the natural and ordinary meaning of the words used recognising that they are statements of the Secretary of State ‘s administrative policy.’.
45. Nothing in the ordinary words of paragraph EU9(c) confined the discretion to cases where a BRC was previously issued to an Applicant and had since become unavailable. The words spoke in general terms of an applicant who was unable to produce the specified relevant document. This suggested that the discretion could never be exercised in favour of an applicant who has never held a BRC. The applicant did not fit the profile of a person seeking to abuse the scheme. Her application having now been rejected as invalid, the route by which she previously obtained a family permit was no longer available. If the respondent’s policy was that the EU 9(c) could never apply to an applicant who had not previously held a specified document that should appear in the published guidance. The guidance relied upon by the Respondent spoke only of alternative evidence being available where an applicant is unable to produce the required document. Requirements cannot be read into guidance without basis in statute.
46. The applicant relied on fairness, and she had sought advice via her representative by telephone from the respondent’s own Resolution Centre before making the applicant. It is reasonable to assume that the call handler would have told her no discretion might be exercised.
Conclusions
47. The UK has now left the EU, but a transition period was introduced which ended on 31st December 2020 following which EU free movement rights lost their direct effect and enforceability save for that governed by the Withdrawal Agreement. In some cases, the UK provided more generous access under the EUSS for those not covered by the Withdrawal Agreement such as FMQBCs, who were given access as a transitional measure from 30th March 2019 to 8th August 2023 (over three years). This transitional provision was ended by the Statement of Changes in Immigration Rules HC 1496. The FMQBC route was closed to new applications, except from those with pre-settled status (limited leave to enter or remain) under the EUSS, or with an EUSS family permit (under Appendix EU (Family Permit)), as an FMQBC.
48. The Explanatory Memorandum of the Statement of Changes to the Immigration Rules HC 1919 (laid before Parliament on 7th March 2019) in relation to Appendix EU of the Immigration Rules, (and in relation to the introduction of Appendix EU) set out that the ability to apply to the EUSS from outside the UK would be limited to EU citizens and certain family members, as follows:
‘EEA and Swiss citizens and certain family members will be able to apply under the scheme from outside the UK, so that they can obtain status, without needing to travel here in order to make an online application, based on their previous residence in the UK. Their family members will also be able to do so where, if they are non-EEA/Swiss citizens, they hold a valid biometric residence card issued by the UK under the Immigration (EEA) Regulations 2016.’
49. The March 2019 Explanatory Statement clearly set out that the ability to apply under the EUSS from outside the UK would be limited, in the case of non-EU citizens, to those who had already been issued a biometric residence card under the 2016 Regulations.
50. The EUSS Policy Equality Statement published in December 2020 set out the reasoning for this approach and sets out how the scheme operates and the reason for the restriction identified above. The approach was justified as (i) a deterrent to speculative and abusive applications which are free, and (ii) because it is not possible for those without biometric residence cards to provide their fingerprint biometrics abroad for the purposes of the EUSS, as required by EU9(d) and which forms part of the immigration control system.
51. In terms of construction, the Supreme Court in Mahad v Entry Clearance Officer [2009] UKSC 16 confirmed at [10] that the primary purpose of the rule is to be taken into account and the rule should be consistent with the purpose. The purpose is clear from the relevant Statements.
52. As Lord Brown opined
“There is really no dispute about the proper approach to the construction of the Rules. As Lord Hoffmann said in MO (Nigeria) v Secretary of State for the Home Department [2009] 1 WLR 1230, 1233, para 4:

“Like any other question of construction, this [whether a rule change applies to all undetermined applications or only to subsequent applications] depends upon the language of the rule, construed against the relevant background. That involves a consideration of the immigration rules as a whole and the function which they serve in the administration of immigration policy.”
53. Under EU 9(c) of Appendix EU the applicant needed to show proof of entitlement. A sensible reading of the relevant rule in conjunction with Annex 1 to Appendix EU makes clear that for any EUSS application made by a non-EEA citizen to be valid, the ‘required proof of entitlement to apply from outside the UK’ must be provided as defined in Annex 1 to Appendix EU.
54. In the case of a non-EEA citizen, it must be ‘their valid specified relevant’ document ‘unless the Secretary of State agrees to accept alternative evidence of entitlement to apply from outside the UK where the applicant is unable to produce the required document due to circumstances beyond their control or to compelling practical or compassionate reasons’. This contrasts with the wider requirement for an EEA citizen which is that the applicant is ‘unable to obtain or produce the required document’.
55. Crucially, the definition of a ‘specified relevant document’ under EU 9(c) is completed by another definition as follows:
‘Relevant document’ under (a)(iii) is defined as

‘(iii) a biometric residence card issued by virtue of having been granted limited leave to enter or remain under this Appendix;
56. This manifestly restricts the definition to biometric residence cards issued under Appendix EU. In order to make a valid application those requirements need to be fulfilled.
57. A sensible reading of the rules is thus not that the Secretary of State may simply waive the biometric requirements. Indeed, as indicated above the Immigration (Provision of Physical Data) Regulations 2006, regulations 2(e) and 3, in effect, specifically requires applicants for the EUSS to provide biometric evidence. Each residence document issued under regulation 18 of the Immigration (European Economic Area) Regulations 2016 or the EUSS, is a biometric card.
58. The requirements of the BRC were imposed to prevent abuse and for security reasons. Biometrics confirm identity and biometrics were/are taken either in line with EU law rights when applying for cards previously under the Immigration (European Economic Area) Regulations 2016 or further under the EUSS as explained in Rexhaj at [49] –[51]. In particular,
‘49(5) In sum, the effect of the definition of “specified relevant document” is that the documents covered by it are those which evidence the grant of residence rights to the applicant either under the pre-withdrawal regime (head (a)) or under the EUSS itself as embodied in Appendix EU (head (b)). They do not include documents evidencing the grant of entry clearance under Appendix EU (FP).

…

51. … Appendix EU only provides for leave to enter in limited and specific circumstances where the applicant can satisfy the requirements of the provisions which I have set out. What it certainly does not do is provide for the generality of non-EEA citizens outside the UK to be able to apply for leave to enter or, more particularly, for persons who have obtained entry clearance under Appendix EU (FP) to be able to do so. That being so, I do not see how it can be regarded as the basis of the leave to enter which Mrs Rexhaj was granted – still less so where the grant of entry clearance under Appendix EU (FP)…’
59. A non-EEA national applying to the EUSS from outside the UK will still be required to send their biometric residence card to the SSHD as part of their application to verify that the person making the application and the person to whom the biometric card has been issued as per the respondent’s records are one and the same person.
60. A non-EEA national applying to the EUSS from outside the UK, such as the applicant, is only required to provide with their application a facial photograph of themselves, within the meaning of “biometric information” in section 15 of the UK Borders Act 2007 because the applicant would already have provided their fingerprints as part of their application in order to obtain a biometric residence card issued under the 2016 Regulations or under the EUSS (as described above), which was not the case for the applicant. (Non-EU citizens making an application from within the UK without a “specified relevant document” (as defined above), are also required to provide their fingerprints (also within the meaning of “biometric information”) – which they would do at a visa application centre in the UK.’). The family permit was granted to enable individuals outside the UK to travel to the UK where they could apply under the EUSS; EUSS applications can only be made outside the UK where the applicant has the “required proof of entitlement to apply from outside the UK”. The key is the ‘specified relevant document’.
61. As explained, if the applicant no longer had the document which had been issued, alternative evidence could then be provided. It can be seen from the Policy equality statement EU Settlement Scheme dated 2nd December 2020 at [124] and [189], the reason that there is no discretion on this point. This is explained by the concerns about the potential for speculative or abusive applications from overseas particularly where identity has not been verified. Paragraph 189 specifically states as follows:
‘189. Approach to non-EEA citizen family members applying overseas.

We do not provide scope for applications to the EUSS from outside the UK by non-EEA citizen family members who do not hold a valid biometric residence card issued under the EEA Regulations or under the EUSS. …’
62. The guidance ‘Validation, variation, voiding and withdrawal of applications’ (version 9) indeed refers applicants to the ‘EU Settlement Scheme: EU, other EEA and Swiss citizens and their family members’ (in this instance 8th October 2024’ (‘the EUSS guidance) in place at the time of the decision.
63. The EUSS guidance at page 68 notes
‘you may accept alternative evidence of identity and nationality where the applicant (if they are an EEA citizen) cannot obtain or (if they are an EEA or non-EEA citizen) cannot produce the required document due to circumstances beyond their control or due to compelling practical or compassionate reasons.
64. Thus, the provisions of alternative evidence relate to an individual having a document but being unable to produce it. ‘Proof of entitlement’ under EU9(c) therefore depends on having already been issued with a document
65. This is in conformity with the interpretation above that the applicant must have previously been issued with a BRC.
66. The EUSS guidance 2024 states at page 32
‘Specified relevant document
Where this guidance makes reference to a ‘specified relevant document’, it means, as defined in Annex 1 to Appendix EU, either:

• within the meaning of sub-paragraph (a)(i)(aa) of the definition of ‘relevant document’, a residence card, permanent residence card or derivative residence card issued by the UK under the EEA Regulations on the basis of an application made on or after 6 April 2015, which means that it is a biometric residence card
• a biometric residence card (as described in sub-paragraph (a)(iii) of the definition of ‘relevant document’) issued by virtue of having been granted limited leave to enter or remain under Appendix EU’.
67. Additionally, the rule contains the requirement that the application has been made using the required application process (EU9(a)), and indeed the Decision under challenge references this. The required application process is defined in Annex 1 to Appendix EU as being
‘the relevant on-line application form and a relevant process set out in that form;’
68. The EUSS application completed by the applicant makes clear at page 5 that if the applicant is not an EEA or Swiss citizen and applying from outside the UK the applicant will need
• ‘Your valid biometric residence card (issued by the UK under the EEA regulations on the basis of an application made on or after 6th April 2015 or under the EU Settlement Scheme): or

• Alternative evidence of this where you are unable to produce the required document due to circumstances beyond your control or due to compelling practical or compassionate reasons (you will also need to provided evidence of these circumstances or reasons).’
69. Again, on the application form at Section 2 it confirms
‘Please note if you are not an EEA or Swiss citizen applying from outside the UK you must use a biometric residence card to prove your entitlement to apply from outside the UK’.
70. This advice is repeated in effect at Section 9 of the application form and it is clear that the application will be rejected as invalid if the applicant is applying from outside the UK and does not provide ‘proof of your entitlement to apply from outside the UK’.
71. In this instance, the applicant’s reliance on an ability to provide other evidence does not assist as the references to other evidence only apply where someone already has a BRC that cannot be produced. A person who had never held a BRC cannot fulfil this requirement. Any alternative interpretation does not accord with the natural and ordinary meaning of the rules.
72. The applicant could not ever comply with Appendix EU when she attempted to make an application outside the UK. The application was rejected because the Applicant has never been issued with an EEA BRC or BRC under the EUSS and therefore the Applicant cannot meet the requirement in EU9(c). Under the Rule there is no discretion. There was a lack of the required proof of entitlement to apply from outside the UK as required by paragraph EU 9(c)
73. The ‘required proof of entitlement’ under EU9(c) for a non-EEA citizen applying outside the UK, therefore depends on having already been issued with a BRC. The respondent’s discretion under EU9(c) of Appendix EU does not extend to accepting alternative evidence where the document, the BRC, has never been issued or previously obtained.
74. EU 9(b) does not apply because the applicant was not in the UK and any reference to it is immaterial.
75. As pointed out by Ms Elliot, there was no request of discretion outside the rules in the covering letter only an exercise of discretion within the rules which as outlined above is not possible. All EEA residence cards applied for on or after 6th April 2015 were issued on the basis of biometrics.
76. The applicant was not entitled to make an EUSS application from outside the UK because she was a non-EU national and had never been issued by SSHD with the biometric residence card required under Appendix EU (EU9) to entitle her to do so. The EUSS application therefore had to be rejected as invalid by SSHD per the express provisions of Appendix EU (EU10(1)).
77. I also note that The Immigration (Provision of Physical Data) Regulations 2006 under regulations 2(e) and 3 in effect requires applicants for EUSS cards to provide biometric evidence. Each residence document issued under regulation 18 of the Immigration (European Economic Area) Regulations 2016 or the EUSS is a biometric card.
78. For the reasons given above grounds (i) and (ii) must fail.
79. As a separate and discrete point which does not impinge on the reasoning above, the FMQBC route under the Appendix EU (Family Permit) closed to any new applications on 8th August 2023. This application was made after the expiry of her family permit (12th August 2024) and had her application not been rejected as invalid she would still have been required to satisfy the Secretary of State that there were reasonable grounds for her delay in applying. In effect, no reasonable grounds were provided by the applicant. There was no explanation as to why her EUSS application could not have been made between 20th February 2024 and her departure on 9th March 2024 particularly as the applicant had specialist legal advice.
80. The Kenyan identity card provided would not have satisfied the applicable requirements.
81. Even if the child had difficulties with her adenoids and prior to the expiry of the family permit the applicant left the UK to have the child operated on. As pointed out the child had been under care since January 2023 (according to the medical evidence supplied) and the condition had not altered. Even if there had been discretion and for the reasoning given, I do not accept that there was in this instance, as Ms Elliot submitted the information provided by the applicant did not provide any form of adequate reasoning for the absent documentation (even if she had a BRC).
82. As to ground (iii) merely because the applicant received an EUSS family permit did not mean that she should be waived through when applying under Appendix EU. That point was underlined in Rexhaj. Leave to enter granted pursuant to an EUSS family permit is not leave granted under Appendix EU for the purposes of the relevant rules. Appendix EU (Family Permit) is a separate scheme which enables access to the UK. The rules are entirely different. That the applicant provided evidence to meet the requirements for Appendix EU (Family Permit) (i.e. provision of her passport which was accepted as being valid) does not mean that she had fulfilled Appendix EU requirements: the same requirements do not apply in this instance. The same evidence may be used as evidence of identity and eligibility as an FMQBC, but this only applies to those who are entitled to apply to the EUSS from outside the UK. Leave to enter granted pursuant to an EUSS family permit is not leave granted under Appendix EU for the purposes of the relevant rules.
83. In terms of the reference to the guidance ‘EU Settlement Scheme applying from outside the UK’, this makes clear that the deadline for applying as an FMQBC was 8th August 2023 unless there are reasonable grounds. This also confirms that the applicant should contact the Resolution Centre if the applicant held no BRC.
84. I conclude that there is no merit to ground (iii) for the reasons given above.
85. Ground (iv). In the light of the above, nothing the applicant might have done would have been able to rectify the position. The applicant herself accepts she did not have a BRC. Her application failed under EU9(c) regardless of any opportunity to respond. The respondent was not required to put the applicant’s assessment of the validity of the applicant’s EUSS application on hold to allow her to make representations on the identity document issue. No representations could have assisted as the applicant did not have a BRC.
86. The genuineness or otherwise of the document was not determinative of the respondent’s Decision. The rejection was the mandatory consequence under EU10(1) of never having been issued with a valid specified relevant document meaning the applicant was not entitled to make the EUSS application from outside the UK. I note to date the applicant has still not sought to explain why the document was found not genuine. It was expressly stated in the Decision that it would not affect future applications and thus she has not suffered detriment as maintained in the grounds.
87. I have reviewed the call made between Clarendon Chambers and the Resolution Centre on 29th July 2024 and it clearly records the agent from the Resolution Centre confirmed the identity of the applicant and stated this was ‘not something we can get around.’ The representative then talked to another agent who confirmed ‘they do need to enter the UK in order for the documents to then be provided’ and that a visit visa could be applied for. I do not accept that any procedural irregularity stems from this conversation.
88. Further to R v Home Secretary ex p. Doody [1994] 1 AC 531 [570], the duty of procedural fairness is context specific and in the circumstances of this case the issue of procedural flaw on public law grounds is not made out. In this context the Decision was rationally open to the Secretary of State.
89. Ground (v) was not granted permission to proceed.
90. Ground (vi). In all the circumstances, the best interests of the applicant’s minor daughter did not require the Secretary of State to accept the applicant’s EUSS application as valid notwithstanding the failure to meet the EU9 validity criteria. The child was not in the UK and although Ms Elliot accepted that the spirit of s55 might apply in these circumstances, the fact is that the application was treated as invalid and this ground takes the matter no further forward.
91. Moreover, a child’s best interests do not mandate the acceptance of a parent’s invalid EUSS application given: (i) the weighty policy reasons for SSHD adopting the EU9(c) validity criterion (set out above); (ii) the fact that C’s daughter (who has lived for the majority of her life outside the UK) can continue to enjoy family life with both parents in Kenya and receive any medical treatment she requires there; (iii) that it is open to C to explore other immigration routes should she wish to relocate with her family to the UK: R (Project for the Registration of Children as British Citizens) v SSHD [2021] EWCA Civ 193, [2021] 1 WLR 3049.
92. The Applicant submitted an out-of-time, out-of-country EUSS application and failed to make any representations as to why section 55 should be expressly considered as part of the impugned Decision. In this regard the application must fail.
93. On the evidence before the Secretary of State, and in my view, the Decision is not arguably contrary to the applicant’s human rights under the ECHR (R (on the application of SA) v SSHD (human rights challenges correct approach) IJR 2015 UKUT 00536 (IAC)).
94. The Decision cannot be impugned on public law grounds.

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