Tajamal Hazoor Randhawa v The Secretary of State for the Home Department [2026] EWCA Civ 1008

[2026] EWCA Civ 1008Case No CA-2025-000904
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
UPPER TRIBUNAL JUDGE JACKSON
UI-2022-005322
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 30 July 2026
Before
LORD JUSTICE LEWISLADY JUSTICE WHIPPLELORD JUSTICE JEREMY BAKER
Between
TAJAMAL HAZOOR RANDHAWAAppellantTHE SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
Zane Malik KC (instructed by K & A Solicitors) for AppellantJulia Smyth KC and Katharine Elliot (instructed by the Government Legal Department) for RespondentHearing Hearing date: 16 July 2026
Approved JudgmentThis judgment was handed down remotely at 2pm on 30 July 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................
[1]This is an appeal by the appellant, Tajamal Hazoor Randhawa, against a decision of the Upper Tribunal. By that decision, the Upper Tribunal dismissed an appeal against a decision of the respondent, the Secretary of State, refusing an application for limited leave to remain, referred to as pre-settled status, under the European Union Settlement Scheme (“the EUSS”). Mr Randhawa had, in fact, made three previous applications for pre-settled status all of which had been refused. The current appeal relates to his fourth application, made on 30 June 2021 and refused on 1 March 2022.[2]In brief, Mr Randhawa is a national of Pakistan. He says he is financially dependent on his brother, who is a national of Italy. The Italian authorities issued Mr Randhawa with a document entitled “residence card of a family member of a Union citizen”. On 19 December 2019, Mr Randhawa and his brother travelled by air to the United Kingdom. His brother showed his Italian passport to the immigration official at Manchester airport. Mr Randhawa showed the immigration official his passport and Italian residence card. The official scanned the passports. He said to them “you can go”. Mr Randhawa and his brother then passed through border control. They have lived in Rochdale since that time. The brother has been granted pre-settled status under the EUSS. Mr Randhawa’s applications for pre-settled status have been refused. He appealed against the last refusal to the First-tier Tribunal which allowed the appeal. The Secretary of State appealed against that decision to the Upper Tribunal.[3]The Upper Tribunal held that the First-tier Tribunal had erred in law and set aside its decision. The Upper Tribunal then went on to re-make the decision. The argument before the Upper Tribunal was, essentially, that the immigration officer, by allowing Mr Randhawa to pass through border controls, had in fact taken a decision under domestic law to allow him to enter and reside in the United Kingdom and had thereby facilitated his residence in accordance with national law within the meaning of Article 10(2) of the Withdrawal Agreement between the European Union and the United Kingdom (“the Withdrawal Agreement”). He contended, therefore, that he fell within the scope of the Withdrawal Agreement and was entitled to be granted pre-settled status by reason of Article 18 of that Agreement.[4]The Upper Tribunal dismissed the appeal giving five reasons. The first three, essentially, were that Mr Randhawa’s entry and residence in the United Kingdom was derived from rights granted by European Union law, not national law, and so he did not fall within the scope of Article 10(2) of the Withdrawal Agreement. The fourth reason was that European Union law granted an initial right of residence for up to three months and that period had expired before the end of the transition period following the departure of the United Kingdom from the European Union. No subsequent decision had been taken by the United Kingdom authorities to facilitate Mr Randhawa’s residence in the United Kingdom. Finally, even if Mr Randhawa’s circumstances had fallen within the scope of the Withdrawal Agreement, the provisions of that Agreement did not assist him as they permitted the United Kingdom to require documentary evidence of the decision under domestic law facilitating the person’s residence in the United Kingdom. Mr Randhawa did not have any documentary evidence of such a decision.[5]Mr Randhawa has permission to appeal on two grounds, namely, that the Upper Tribunal erred in law in holding that:(1) the Appellant fell outside the scope of the Withdrawal Agreement; and that(2) the Withdrawal Agreement did not assist him.[6]Mr Randhawa’s essential submission was that the Upper Tribunal had erred. First, it was wrong to hold that Mr Randhawa had been allowed to enter the United Kingdom as a matter of European Union law. Rather, the immigration officer had been exercising powers granted by reason of regulations 11 or 29 of the Immigration (European Economic Area) Regulations 2016 (“the Regulations”). The decision of the immigration officer was, viewed objectively, a decision under domestic law to allow Mr Randhawa to enter the United Kingdom and live here with his brother. That did amount to the facilitation of residence within the meaning of Article 10(2) of the Withdrawal Agreement. Further, there was documentary evidence of that decision. The actions of the immigration officer in effect amounted to the adoption by the United Kingdom authorities of Mr Randhawa’s Italian residence card which constituted the relevant documentary evidence.[7]The respondent filed a respondent’s notice contending that the Upper Tribunal was right to conclude that Article 10(2) of the Withdrawal Agreement did not assist Mr Randhawa but for different reasons than the ones given by the Upper Tribunal. The respondent’s notice sought to uphold the Upper Tribunal decision on the basis that:(1) the Upper Tribunal was wrong to find that Mr Randhawa had a right of entry under European Union law by virtue of the residence card issued by the Italian authorities;(2) whatever the circumstances of Mr Randhawa’s arrival in the United Kingdom, the authorities had done nothing to facilitate his residence in accordance with Article 10(2) of the Withdrawal Agreement; and(3) alternatively, that that residence had ended before the end of the transition period or that Mr Randhawa could not show that he met the requirements that he was dependent on, or was a member of the household of, his brother.

THE LEGAL FRAMEWORK

[8]The legal framework governing rights of residence and the application of the provisions of the Withdrawal Agreement are set out in detail in judgments of this Court in Celik v Secretary of State for the Home Department [2024] 1 WLR 1946 at paragraphs 7 to 28, and Vasa and Hasanaj v Secretary of State for the Home Department [2025 1 WLR 39 at paragraphs 9 to 23. It is only necessary to set out the following features of the legal framework for the purposes of this appeal. The system prior to the end of the transition period Rights of entry and residence under European Union law

The system prior to the end of the transition period

[9]The United Kingdom was bound to give effect to European Union law on the free movement of European Union citizens and their family members while the United Kingdom was a member of the European Union, and during the transition period which followed its departure which ended at 11 pm on 31 December 2020.[10]Articles 20 and 21 of the Treaty on the Functioning of the European Union (“TFEU”) provided that nationals of member states of the European Union were to be citizens of the European Union and were to have the right to move and reside freely within the territory of the member states “subject to the limitations and conditions laid down in the Treaties and by measures adopted to give them effect”. Directive 2004/38/EC of the European Parliament and the Council of 29 April 2004 (“the Directive”) was the principal EU legislative measure dealing with the rights and limitations of EU nationals and their family members to reside in the United Kingdom.

Rights of family members

[11]Family members were defined in Article 2(2) of the Directive as(a) the spouse(b) the partner under a registered partnership(c) the direct descendants under the age of 21 (or over the age of 21 if they were dependants) and(d) the dependent direct relatives in the ascending line of the EU national. EU nationals and their family members as defined in Article 2 of the Directive had the right to enter the United Kingdom, reside there for an initial period of three months, and then to reside for a period longer than three months if certain conditions were fulfilled: see Articles 5, 6 and 7 of the Directive. Those rights were derived from EU law itself.[12]Article 5 of the Directive is headed “Right of entry” and provides:
“1. Without prejudice to the provisions on travel documents applicable to national border controls, Member States shall grant Union citizens leave to enter their territory with a valid identity card or passport and shall grant family members who are not nationals of a Member State leave to enter their territory with a valid passport. No entry visa or equivalent formality may be imposed on Union citizens. 2. Family members who are not nationals of a Member State shall only be required to have an entry visa in accordance with Regulation (EC) No 539, or where appropriate with national law. For the purposes of this Directive, possession of the valid residence card referred to in Article 10 shall exempt such family members from the visa requirement. 3. The host Member state shall not place an entry or exit stamp in the passport of family members who are not nationals of a Member provided that they present the residence card provided for in Article 10.”
[13]Article 6 of the Directive conferred a right of initial residence for up to three months on Union citizens and “family members” who were not nationals of a Member State. It provides that:
“1. Union citizens shall have the right to reside in the territory of another Member State for a period of up to three months without any condition or any formalities other than the requirement to hold a valid identity card or passport. 2. The provisions of paragraph 1 shall also apply to family members in possession of a valid passport who are not nationals of a Member State, accompanying or joining the Union citizen.”
[14]Article 7 of the Directive conferred a right on Union citizens and their family members to reside in another Member State for longer than three months if the Union citizen met certain requirements. Article 9 provided for a Member State to issue a residence card to family members of Union citizens.

Rights of other persons

[15]Article 3 of the Directive is headed “Beneficiaries” and deals with persons who are not family members as defined in Article 2 of the Directive. Article 3(2)(a) refers to them as “any other family members” and Article 3(2)(b) deals with partners in a durable relationship. Article 3(2) provided that:
“2. Without prejudice to any right of 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 within 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. 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.” (a) any other family members, irrespective of their nationality, not falling within 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. 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.”
[16]Article 3(2) did not oblige a Member State to grant a right of entry and residence to these other family members or durable partners, but only to facilitate entry and residence. Such persons did not, therefore, derive rights of entry and residence from EU law itself. Rather, Article 3(2) meant that Member States had to confer a certain advantage on applications made by persons who have a relationship with an EU citizen, as compared with applications for entry and residence by other nationals of third states. Any right to reside was granted by the Member State in accordance with its national legislation and the Member State had a wide discretion as to the factors to be taken into account in deciding whether to grant a right to reside to an extended family member. The criteria used, however, had to be consistent with the normal meaning of “facilitate” and “dependence” and could not deprive the provisions of effectiveness, and the individual was entitled to a judicial remedy to ensure that the national legislation remained within the limits set by the Directive. See Secretary of State for the Home Department v Rahman (Case C-83/11) [2013] QB 249 especially paras 21–25 of the judgment of the Court of Justice of the European Union, and Banger v Secretary of State for the Home Department (Case C-89/17) [2019] 1 WLR 845 especially at paras 47–51.

Right to a residence card

[17]Finally Article 10 of the Directive deals with the issuing of a residence card by the national authorities of a Member State for(a) family members and(b) other persons entitled under national law to reside. Article 10 provides, so far as material, that: “1. The right of residence of family members of a Union citizen who are not nationals of a Member State shall be evidenced by the issuing of a document called “Residence card of a family member of a Union citizen”….. 2. For the residence card to be issued, Member States shall require the following documents: (a) a valid passport; (b) a document attesting to the existence of a family relationship or of a registered partnership;(c) the registration certificate or, in the absence of a registration system, any other proof of residence in the Member State of the Union citizen whom they are accompanying or joining;(d) in cases falling under points (c) and (d) of Article 2 (2), documentary evidence that the conditions laid down therein are met;(e) in cases falling under Article 3(2)(a), a document issued by the relevant authority in the country of origin or country from which they are arriving certifying that they are dependants or members of the household of the Union citizen……(f) in cases falling under Article 3(2)b(b), proof of the existence of a durable relationship with the Union citizen”. (b) a document attesting to the existence of a family relationship or of a registered partnership; (c) the registration certificate or, in the absence of a registration system, any other proof of residence in the Member State of the Union citizen whom they are accompanying or joining; (d) in cases falling under points (c) and (d) of Article 2 (2), documentary evidence that the conditions laid down therein are met; (e) in cases falling under Article 3(2)(a), a document issued by the relevant authority in the country of origin or country from which they are arriving certifying that they are dependants or members of the household of the Union citizen…… (f) in cases falling under Article 3(2)b(b), proof of the existence of a durable relationship with the Union citizen”.[18]Although Article 10(1) talks of the right of residence of “family members”, it is clear from the provisions of Article 10 read as a whole that the Article is not limited to family members as defined in Article 2(2) (and who have a right to reside under European Union law). It extends to other family members (those within Article 3(2) of the Directive). That is clear from the fact that the proof needed for a residence card includes proof of the circumstances bringing someone into the category of “other family members” in Article 3(2)(a) or durable partners in Article 3(2)(b). Their right of residence derives from domestic law (not European Union law) but they are entitled to a residence card evidencing their right to reside in the Member State which granted them the right to reside as a matter of national law.

The position under domestic law

[19]The Regulations were the principal means by which the United Kingdom gave effect to the provisions of the Directive. The Regulations recognised the right to enter and reside in the United Kingdom of EU nationals and their family members as defined in regulation 7 (which reflected the provisions of Article 2 of the Directive).[20]In addition, regulation 8 of the Regulations defined a category of persons described as “extended family members” (those defined in Article 3 of the Directive as “any other family member” or a durable partner). Those persons would not have a right under European Union law to enter and reside in the United Kingdom. They may be given such a right under domestic law. That is recognised by regulation 7(3) which provided that extended family members issued with an EEA family permit, residence card or registration certificate (provision for which was made by the Regulations) “must be treated as a family member” so long as they satisfy certain conditions. The EEA family permit, residence card or registration certificate is a document issued by the national authorities if they are satisfied that certain criteria laid down under domestic law are met: see regulation 2 and regulations 12, 17 and 18 respectively.[21]Part 2 of the Regulations was headed “EEA Rights”. Regulation 11 is headed “Right of admission to the United Kingdom”. It provided, so far as material at the relevant time that:(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— (a) a family member of an EEA national and produces on arrival a valid passport and qualifying EEA State residence card, provided the conditions in regulation 23(4) (family member of EEA national must accompany or join EEA national with right to reside) are met; or (b) a family member of an EEA national, a family member who has retained the right of residence, a person who meets the criteria in paragraph (5) or a person with a right of permanent residence under regulation 15 and produces on arrival— (i) a valid passport; and (ii) a valid EEA family permit, residence card, derivative residence card or permanent residence card. …..(3) An immigration officer must not place a stamp in the passport of a person admitted to the United Kingdom under this regulation who is not an EEA national if the person produces a residence card, a derivative residence card, a permanent residence card or a qualifying EEA State residence card. ……”. (a) a family member of an EEA national and produces on arrival a valid passport and qualifying EEA State residence card, provided the conditions in regulation 23(4) (family member of EEA national must accompany or join EEA national with right to reside) are met; or (b) a family member of an EEA national, a family member who has retained the right of residence, a person who meets the criteria in paragraph (5) or a person with a right of permanent residence under regulation 15 and produces on arrival— (i) a valid passport; and (ii) a valid EEA family permit, residence card, derivative residence card or permanent residence card. (ii) a valid EEA family permit, residence card, derivative residence card or permanent residence card.[22]Care needs to be taken in reading the provisions of regulation 11. An EEA national must be admitted to the United Kingdom. Regulation 11(2) deals with a “person who is not an EEA national”. They must be admitted to the United Kingdom if they are family members and produce a relevant document. That document could be a qualifying EEA state residence card – that is, a card issued by the national authorities under Article 10 of the Directive. Or it could be a valid EEA family permit or residence card which may be issued by the United Kingdom authorities to an extended family member as a matter of national law in the exercise of the discretion granted by regulations 12(4) or 18(4).[23]It is, however, family members who have rights under regulation 11(2) of the Regulations. They are the persons defined in regulation 7, that is the spouse or partner, direct descendants under the age of 21, or dependant relatives in the ascending line. Extended family members – such as brothers – do not fall within the definition of regulation 7(1). However, such an extended family member “must be treated as a family member” if they have been issued with an EEA family permit, registration certificate or residence card issued by the United Kingdom authorities as an exercise of discretion under national law: see regulation 7(3). In other words, and put simply, an extended family member will only be entitled to be treated as a family member, and so have a right of entry under regulation 11, if the United Kingdom authorities have already decided to grant that person a right to enter or reside as a matter of domestic law and have issued him or her with the relevant document under the Regulations.[24]Regulation 29 of the Regulations appears in Part 5 which is headed “Procedure in Relation to EEA Decisions”. Regulation 29 is headed “Persons claiming a right of admission”. It provided at the relevant time that: “(1) This regulation applies to a person who claims a right of admission to the United Kingdom under regulation 11 as—(a) a person, not being an EEA national, who— (i) is a family member of an EEA national; (ii) is a family member who has retained the right of residence; (iii) has a derivative right to reside; (iv) has a right of permanent residence under regulation 15; or (v) is in possession of a qualifying EEA State residence card;(b) an EEA national, where there is reason to believe that the EEA national may be a person to whom regulation 23(1), (2), (3) or (4) applies; or(c) a person to whom regulation 41 applies (temporary admission to submit case in person). (2) A person to whom this regulation applies is to be treated as if that person were a person seeking leave to enter the United Kingdom under the 1971 Act for the purposes of paragraphs 2, 3, 4, 7 and 16 to 18A of Schedule 2 to the 1971 Act (administrative provisions as to control on entry etc), except that— (a) the reference in paragraph 2(1) to the purpose for which the immigration officer may examine any persons who have arrived in the United Kingdom is to be read as a reference to the purpose of determining whether the person is to be granted admission under these Regulations; (b) the references in paragraphs 3, 7 and 16(1) to a person who is, or may be, given leave to enter are to be read as references to a person who is, or may be, granted admission under these Regulations; and (c) a medical examination is not to be carried out under paragraph 2 or paragraph 7 as a matter of routine and may only be carried out within three months of the person's arrival in the United Kingdom. (3) For so long as a person to whom this regulation applies is detained under the powers conferred by Schedule 2 to the 1971 Act, or granted bail under Schedule 10 to the 2016 Act whilst liable to be detained under the powers conferred by Schedule 2 to the 1971 Act, the person is deemed not to have been admitted to the United Kingdom.” (i) is a family member of an EEA national; (ii) is a family member who has retained the right of residence; (iii) has a derivative right to reside; (iv) has a right of permanent residence under regulation 15; or (v) is in possession of a qualifying EEA State residence card; (b) an EEA national, where there is reason to believe that the EEA national may be a person to whom regulation 23(1), (2), (3) or (4) applies; or (c) a person to whom regulation 41 applies (temporary admission to submit case in person). (a) the reference in paragraph 2(1) to the purpose for which the immigration officer may examine any persons who have arrived in the United Kingdom is to be read as a reference to the purpose of determining whether the person is to be granted admission under these Regulations; (b) the references in paragraphs 3, 7 and 16(1) to a person who is, or may be, given leave to enter are to be read as references to a person who is, or may be, granted admission under these Regulations; and (c) a medical examination is not to be carried out under paragraph 2 or paragraph 7 as a matter of routine and may only be carried out within three months of the person's arrival in the United Kingdom.[25]The Regulations were revoked on 31 December 2020 at the end of the transition period.

The Withdrawal Agreement

[26]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”.[27]The material parts of the Withdrawal Agreement for the purposes of this appeal are as follows. Part Two of the Withdrawal Agreement is headed “Citizens’ Rights”. Article 9 provided certain definitions. In particular, it defined “family members” for the purpose of determining who falls within article 10(1) of the Withdrawal Agreement as those persons defined in Article 2(2) of the Directive (ie spouses, civil partners, the direct descendants under the age of 21, or over the age of 21 if they were dependants, and the dependent direct relatives in the ascending line of the EU national) and one other category of persons which is not material for this case. Extended family members, such as other dependent relatives or those living in the same household as an EU national, are not family members within the definition.[28]Article 10 then defines those who fall within the “personal scope” of the Withdrawal Agreement. Article 10(1) deals with European Union nationals and family members (ie those falling within the definition of Article 2 of the Directive) who were residing in the United Kingdom in accordance with EU law before the end of the transition period and who continued to do so afterwards. Their rights to enter and reside, derived from EU law, were continued after the end of the transition period by virtue of Title II of Part Two, and in particular, by Articles 13 to 15, of the Withdrawal Agreement.[29]Article 10(2) and (3) deal with the position of other family members (ie those defined in Article 3 of the Directive and whom the Regulations referred to as “extended family members”). Article 10(2) dealt with those extended family members whose residence in the United Kingdom had been facilitated in accordance with domestic law before the end of the transition period. Article 10(3) brought those persons who had applied for facilitation of entry and residence before the end of the transition period and whose residence was facilitated thereafter by the United Kingdom in accordance with domestic law within the scope of the Withdrawal Agreement. Articles 10(2) and (3) provide as follows:
“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.”
[30]Title II does not confer any specific right on extended family members of EU nationals to reside in the United Kingdom after the end of the transition period. That is because such rights were granted under domestic law not EU law. However, as appears from the discussion below, the Withdrawal Agreement clearly proceeds on the basis that they will be able to rely on the rights recognised by domestic law after the end of the transition period.[31]Article 18 provides that the United Kingdom or member states may choose to provide for a new residence status which confers the rights guaranteed by Title II of Part Two of the Withdrawal Agreement and which is evidenced by a new residence document. The material provisions for present purposes are the following:
“1. The host state may require Union citizens or United Kingdom nationals, their respective family members and other persons, who reside in its territory in accordance with the conditions set out in this Title, to apply for a new residence status which confers the rights under this Title and a document evidencing such status which may be in a digital form. “Applying for such a residence status shall be subject to the following conditions: ….. “(l) the host state may only require family members who fall under point (e)(i) of article 10(1) or article 10(2) or (3) of this Agreement and who reside in the host state in accordance with point (d) of article 7(1) or article 7(2) of Directive 2004/38/EC to present, in addition to the identity documents referred to in point (i) of this paragraph, the following supporting documents as referred to in article 8(5) or 10(2) of Directive 2004/38/EC: (i) a document attesting to the existence of a family relationship or registered partnership; (ii) the registration certificate or, in the absence of a registration system, any other proof that the Union citizen or the United Kingdom national with whom they reside actually resides in the host state; (iii) for direct descendants who are under the age of 21 or who are dependants and dependent direct relatives in the ascending line, and for those of the spouse or registered partner, documentary evidence that the conditions set out in point (c) or (d) of article 2(2) of Directive 2004/38/EC are fulfilled; (iv) for the persons referred to in article 10(2) or (3) of this Agreement, a document issued by the relevant authority in the host state in accordance with article 3(2) of Directive 2004/38/EC.” (i) a document attesting to the existence of a family relationship or registered partnership; (ii) the registration certificate or, in the absence of a registration system, any other proof that the Union citizen or the United Kingdom national with whom they reside actually resides in the host state; (iii) for direct descendants who are under the age of 21 or who are dependants and dependent direct relatives in the ascending line, and for those of the spouse or registered partner, documentary evidence that the conditions set out in point (c) or (d) of article 2(2) of Directive 2004/38/EC are fulfilled; (iv) for the persons referred to in article 10(2) or (3) of this Agreement, a document issued by the relevant authority in the host state in accordance with article 3(2) of Directive 2004/38/EC.”
[32]As indicated, the purpose of Article 18 is to ensure that the rights of residence of EU nationals and their family members which are guaranteed by Title II are reflected in the new residence status and documents issued evidencing that status. Title II does not guarantee any rights conferred by national law on extended family members of EU nationals. They are, however, clearly intended to be within the scope of the residence status. That appears from the fact that the status applies to Union citizens, family members and “other persons”, a phrase which is apt to include extended family members. Furthermore, Article 18(1)(l)(iv) expressly deals with the document that may be required of extended family members falling within Article 10(2) and (3) when they apply for the new residence status. The implication is that the new residence status will be available to extended family members falling within the scope of the Withdrawal Agreement and who satisfy the requirements of the Withdrawal Agreement applicable to them. The United Kingdom arrangements.[33]The Withdrawal Agreement was given effect to 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.[34]The United Kingdom chose to create a new residence status as envisaged by Article 18 of the Withdrawal Agreement. On 30 March 2019, the United Kingdom adopted Appendix EU to the Immigration Rules setting out the arrangements for granting limited or indefinite leave to remain in the case of EU nationals and their family members. That Appendix contained the EUSS. It provided for a person to apply for limited leave to remain (pre-settled status) and indefinite leave to remain (settled status) if the person satisfied certain requirements including the possession of certain documents.

THE FACTUAL BACKGROUND

[35]Mr Randhawa is a national of Pakistan born on 1 April 1975. He has a wife and six children in Pakistan. He has a brother who relocated from Pakistan to Italy in 1998. The brother has acquired Italian nationality. The evidence put before the First-tier Tribunal and the Upper Tribunal was to the effect that Mr Randhawa relocated to Italy in 2017 and lived with his brother in Italy. It was said that he was, and remains, financially dependent on his brother.[36]The Italian authorities issued Mr Randhawa with a document entitled “Residence Card of a Family Member of a Union Citizen”. That is a document which is, in form, the document referred to in Article 10 of the Directive as a residence card. It is a document which would be a “qualifying EEA State residence card” as defined in regulation 2 of the Regulations. Ms Smyth KC, for the respondent, questioned the ability of the Italian authorities to issue such a residence card under Article 10 of the Directive (and that formed the first part of the respondent’s notice). For my part, I am prepared for the purpose of this appeal to treat the document as what, on its face, it appears to be, namely a residence card issued by the Italian authorities under Article 10 of the Directive. Even assuming that to be the case, however, what that would mean is that the Italian authorities had granted Mr Randhawa (as “any other family member” within the meaning of Article 3(2)(a) of the Directive) the right under Italian law to reside in Italy.[37]On 19 December 2019, Mr Randhawa and his brother travelled by air to the United Kingdom. The boarding pass given to Mr Randhawa in Italy bore the handwritten words “visa ok”. The Upper Tribunal found that this was written by a member of the airline staff in Italy. In the event, Mr Malik KC for Mr Randhawa expressly said in oral submissions that no reliance was placed on the boarding card, and, in particular no reliance was placed on it as evidencing any grant of entry or right to reside in the United Kingdom.[38]On arrival at Manchester airport, the evidence which was accepted by the Upper Tribunal was that Mr Randhawa showed the immigration officer his passport and his brother showed his passport and their passports were scanned. Mr Randhawa also showed the immigration officer his Italian residence card and his Italian identity card. The evidence was that Mr Randhawa was not asked any questions by the immigration officer about why he was coming to the United Kingdom. After scanning the passports, the immigration officer said “You can go”. No stamp was placed in Mr Randhawa’s passport. Mr Randhawa and his brother passed through the border control area and through the airport. They have lived at an address in Rochdale in Lancashire in England since that time.[39]On 20 February 2020, Mr Randhawa applied for pre-settled status under the EUSS. That application was refused by letter dated 5 October 2020. The letter explained that an applicant had to have the required evidence of a family relationship of a dependent relative which was an EEA family permit or residence card issued under the Regulations. The letter said that until Mr Randhawa had such a document he could not be granted pre-settled status under the EUSS. It said that if Mr Randhawa wished to submit an application for such a document more information could be found on a particular website (details of which were given).[40]Mr Randhawa did not seek a review of that decision and he did not appeal against it. He did not apply for an EEA family permit or residence card. He made two further applications, in essentially, identical terms for pre-settled status on 16 October 2020 and 28 December 2020. They were refused by letters dated 9 December 2020 and 9 April 2021 respectively. On each occasion, the refusal explained that Mr Randhawa needed to have an EEA family permit or residence card issued under the Regulations and that he did not have such a document. It told him each time where information could be obtained if he wished to apply for such a document.[41]On 26 January 2022, Mr Randhawa applied for the fourth time for pre-settled status under the EUSS. That was refused again on 11 March 2022. Mr Randhawa appealed against that refusal to the First-tier Tribunal. On 1 July 2022, that appeal was allowed. The Secretary of State appealed to the Upper Tribunal which found that the First-tier Tribunal had made an error of law and set the decision aside. The Upper Tribunal then held a hearing, considered oral and documentary evidence and re-made the decision.[42]Before the Upper Tribunal, Mr Randhawa relied upon the decision of this Court in Vasa. That case concerned two individuals. Each was a non-EEA national (in both cases, citizens of Albania) who had travelled to the United Kingdom with relatives who were EU nationals. In each case, the individual concerned presented himself to UK border officials (in one case, to border officials at the Gare du Nord in Paris before boarding a train bound for London, and in the other on arrival at Luton airport). In both cases, each individual had his passport stamped “Admitted to the United Kingdom under the Immigration (EEA) Regulations 2016” and stamped with a second stamp saying “Immigration Officer” and the relevant date. This Court held that, on the facts, the immigration officials had, as a matter of national law, permitted the individuals to enter the United Kingdom and reside with their relatives so long as they met the requirements set out in the Regulations. They fell within Article 10(2) of the Withdrawal Agreement (as their residence had been facilitated in accordance with national law). They were entitled to the new residence status created by the EUSS as, although they did not have one of the documents listed in the EUSS, they did have the document under which their residence in the United Kingdom had been facilitated in accordance with national law – namely, the stamp in their passports. They were entitled to rely on Article 18(1)(l)(iv) of the Withdrawal Agreement which provided, in effect that the United Kingdom could only require either one of the documents listed in the EUSS or the document under which their residence had been facilitated.[43]Mr Randhawa submitted that his case was indistinguishable from the cases of Mr Vasa and Mr Hasanaj. The Upper Tribunal held that the present case was different from those of Mr Vasa and Hasanaj for five reasons.[44]First the Upper Tribunal held Mr Randhawa was not relying solely on domestic law but was relying on European Union law. It held at paragraph 49 that:
“49…..Firstly, the Appellant here was not relying on arrival on a solely domestic law provision or decision for his entry or residence as he had already been issued with a Residence Card in Italy as the family member of an EEA national. His admission to the United Kingdom in December 2019 was therefore governed by the Directive, as implemented by the EEA Regulations. In particular, his right of entry was provided for by Article 5 of the Directive, as implemented by Regulation 11 of the EEA Regulations; both of which would obligate an Immigration Officer to permit entry - provided the documentary requirements for entry are met, they were accompanying or joining an EEA national and unless a person was subject to a removal decision. That is entirely consistent with what happened on the Appellant’s account of his arrival at Manchester airport, the required documents were checked and he was travelling with an EEA national; there being no suggestion of any removal decision. No further decision or consideration was required by the Immigration Officer and as also specified in the Directive and in the EEA Regulations, no stamp or documentary record was made of the entry.”
[45]Secondly, and consequently, any decision made by the immigration officer in the present case was to permit entry in accordance with European Union law. It held at paragraph 51 that: “51…Objectively interpreted, a reasonable person could only understand that the Appellant had been permitted entry and residence for a maximum period of three months in the United Kingdom. There is nothing in the Appellant’s account of what happened on arrival at the airport to suggest otherwise and contrary to the facts in Vasa and Hasanaj, there is no stamp in his passport without any time restriction...”.[46]Thirdly, for those reasons, the Upper Tribunal held that, while Mr Randhawa’s entry and residence in the United Kingdom “had been facilitated by the United Kingdom in December 2019; this was pursuant to directly enforceable EU law and not solely in accordance with its national legislation” (see paragraph 52 of its decision).[47]Fourthly, any right of residence would have been initially for three months. This would have expired before the end of the transition period (which ended on 31 December 2020). There was no application to facilitate residence after the expiry of the initial right of residence.[48]Fifthly, the Upper Tribunal held that, even if Mr Randhawa did fall within the scope of the Withdrawal Agreement, there were no provisions of Article 18 which assisted him in his application for pre-settled status under the EUSS. It held that:
“59. In Vasa and Hasanaj, the appeals were allowed under Article 18(1)(l)(iv) of the EU Withdrawal Agreement on the basis that those appellants had a ‘document issued by the relevant authority in the host state in accordance with Article 3(2) of Directive 2004/38’, namely the stamps placed in their passports. That is distinguishable from the present appeal in which there is no such document at all and no stamp in the passport. There is nothing in the Court of Appeal’s decision to suggest that any part of Article 18 did not require a document at all, to the contrary, the express wording required a document and the only departure from this was that the Withdrawal Agreement was not so limited as the definition in Appendix EU as to the specific type of document required. 60. It is wholly unarguable that the handwritten note on the Appellant’s boarding passport was akin to a stamp in the passport given that it was not issued by a relevant authority in the host state. The oral evidence on who wrote that the visa was ‘ok at gate’ was not consistent, but it was clear from both the Appellant and the Sponsor that this happened in Italy and not in the United Kingdom and nothing to suggest any UK Immigration Officers were stationed at the airport in Italy to have written this. As I noted at the hearing, I take judicial notice of the fact that airlines have responsibilities as carriers to ensure that a person has the correct permission to travel and given the reference to the ‘gate’ both on the boarding pass and at least in part in the oral evidence; I find it more likely than not that the handwritten note was made by a member of airline staff. Even if made by an Italian immigration official, that would not meet the requirement as the document must have been issued by the relevant authority in the host State, i.e. the United Kingdom.”
[49]The Upper Tribunal therefore dismissed Mr Randhawa’s appeal against the refusal of pre-settled status under the EUSS.

THE GROUNDS OF APPEAL AND THE RESPONDENT’S NOTICE

[50]It is convenient to deal together with both grounds of appeal and the additional grounds relied upon in the respondent’s notice. All the issues raised, and the submissions made, concern the factual and legal basis upon which Mr Randhawa was able, to put it neutrally, to come to and live in the United Kingdom.

Submissions

[51]Mr Malik KC, for Mr Randhawa, submitted that Mr Randhawa had not entered and resided in the United Kingdom under European Union law. He submitted that there was a discretion, under national law, contained in either regulation 29, or implicit in regulation 11, of the Regulations, to allow a non-EEA national who was a dependent relative of an EEA national, to enter and reside in the United Kingdom. Objectively that was what had happened when the immigration officer allowed Mr Randhawa to enter the United Kingdom. The situation was indistinguishable from that in Vasa and Hasanaj. As in that case, Mr Randhawa presented himself at the border wishing to be allowed to come and live with his brother in the United Kingdom. The immigration officer in the present case, viewed objectively, made a decision to allow Mr Randhawa to come into the United Kingdom to live with his Italian national brother. In doing so, the immigration officer facilitated Mr Randhawa’s residence in the United Kingdom, in accordance with national law. He submitted, therefore, that Mr Randhawa fell within Article 10(2) of the Withdrawal Agreement.[52]Further, Mr Malik submitted that when a person applied for the new residence status, the United Kingdom could only require certain documents, one of which was the document issued by the immigration authorities in the United Kingdom facilitating the person’s residence. Mr Malik submitted that “issued” meant “to make something known formally” or “to make known or announce”. He submitted that the document was the Article 10 residence card possessed by Mr Randhawa and shown by him to the immigration officer at the airport. The immigration officer formally made it known that the United Kingdom accepted and adopted that residence card as a document issued Article 3(2) of the Directive. That was sufficient to satisfy the requirements of Article 18(1)(l)(iv) of the Withdrawal Agreement.[53]Ms Smyth KC, with Ms Elliot, for the Secretary of State, submitted that Mr Randhawa did not enjoy any right of entry or residence under European Union law. As a non-EEA national claiming to be a dependent relative within the meaning of Article 3(2) of the Directive, he would have required to be permitted to enter and reside in the United Kingdom under national law. The mechanism for an extended family member to achieve that was to apply for and be granted an EEA family permit under regulation 12(4) of the Regulations. No such application had been made and no such permit granted. Consequently, Ms Smyth submitted that there was no power to admit Mr Randhawa to the United Kingdom under national law and the immigration officer had not been doing that when he told Mr Randhawa “you can go”.

Discussion and conclusion

[54]It is helpful first to consider Mr Randhawa’s circumstances. Secondly, it is sensible then to consider by what legal route a person in Mr Randhawa’s circumstances would normally be permitted to enter and reside in the United Kingdom. Thirdly, it is necessary to consider what, objectively, the immigration officer did when allowing Mr Randhawa to pass through border control at Manchester airport. Fourthly, it may be necessary to consider what documents the Withdrawal Agreement permits the United Kingdom to require of a person seeking pre-settled or settled status under the new residence status, the EUSS, recognised by Article 18 of the Withdrawal Agreement.

Mr Randhawa’s circumstances

[55]Mr Randhawa is a national of Pakistan. He is not a national of an EEA state. He claims to be the dependent relative of his brother who is a national of an EEA state (Italy). As far as European Union law was concerned, Mr Randhawa was not, therefore, a family member within the meaning of Article 2 of the Directive – he is not a spouse or registered partner, a direct descendant, or a dependent relative in the ascending line (for example, a parent or grandparent). He was another family member within the meaning of Article 3(2)(a) of the Directive. Therefore, he did not have a right under European Union law to enter and reside in Italy. The Italian authorities could permit him to enter and live in Italy under Italian law. He could, in appropriate circumstances, be granted a residence card under Article 10 of the Directive as such a person (i.e. with a right to reside in Italy under Italian law). It is not necessary to consider whether or not the circumstances under which the Italians could issue such a card were satisfied here.[56]As a matter of United Kingdom law, Mr Randhawa was not a family member within the meaning of regulation 7(1) of the Regulations. He was an extended family member within the meaning of regulation 8 of the Regulations. He would, however, have to be treated as a family member within the regulation 7 if he had been granted an EEA family permit under national law pursuant to an exercise of discretion under regulation 12(4) of the Regulations (or a residence card issued under regulation 18(4)). He had not, in fact, applied for such an EEA family permit or residence card. He was not, therefore, a person who was to be treated as a family member. He was an extended family member. The legal route by which Mr Randhawa could have entered and resided within the United Kingdom.[57]Mr Randhawa did not have a right derived from, or recognised by, European Union law to enter the United Kingdom. Article 5(1) of the Directive provides that Member States shall grant Union citizens leave to enter their territory. They shall also grant family members who are not a national of a Member State leave to enter. Family members are persons within the definition in Article 2(2) of the Directive – i.e. spouses or partners, direct descendants under 21 or dependent, or dependent relatives in the ascending line. Mr Randhawa was not such a family member.[58]Similarly, Article 6 of the Directive recognises a right to reside for up to three months on the part of a national of a Member State and “family members” who are not nationals of a Member State. The right to reside in a Member State thereafter, recognised by Article 7 of the Directive, again applies to nationals of a Member State and their family members (provided certain conditions are met). Mr Randhawa was not such a family member and could not have benefitted from a right to reside.[59]Those provisions reflect Articles 2 and 3 of the Directive which draw a distinction between family members as defined in Article 2 and “any other family members” within Article 3. The former have rights derived from European Union law. That is not the case with “any other family members” within the meaning of Article 3(2) who can only derive rights to enter and reside from national, not European Union, law.[60]I recognise that Article 5(2) of the Directive deals with situations where a non-EEA national may not be required to have a visa when entering a Member State but can rely on the valid residence card referred to in Article 10 of the Directive. That may suggest that a non-EEA national has a right to, and can, enter the territory of another Member State simply on production of an Article 10 residence card. I do not consider that that is the effect of Article 5(2). First, Article 5(1) deals with the right to enter and that deals with the rights of Union citizens and family members (not other family members within Article 3(2) of the Directive) to enter the territory of a Member State. Secondly, that distinction is consistent with the structure of the Directive which distinguishes between family members and other family members in Articles 2 and 3 of the Directive. That distinction is also consistent with Articles 6 and 7 which recognise that the right to reside (which follows on from entry) is enjoyed by nationals of Member States and non-EEA nationals who are family members. Thirdly, Article 5(2) is concerned solely with procedure, namely what documents a family member must produce when seeking admission to a Member State: see Kaur v Secretary of State for the Home Department [2020] EWCA Civ 98; [2020] 3 CMLR 9 at paragraph 51. I conclude, therefore, that Article 5(2) does not confer a right of entry itself. In any event, whatever the scope of Article 5, it does not confer, or recognise, any right of residence.[61]The position under the Directive was implemented in domestic law by the terms of the Regulations. Regulation 11 confers on EEA nationals and their family members a right to enter the United Kingdom. Family members are defined in regulation 7 and do not include extended family members. There is provision for extended family members to be treated as family members – but only where they have been issued with an EEA family permit or residence card in the exercise of the discretion conferred as a matter of domestic law by regulations 12(4) and 18(4). Mr Randhawa was a non-EEA national – he is a national of Pakistan. He is not a family member within the meaning of regulation 7. He does not fall to be treated as a family member under regulation 7(3) as he has not been issued with an EEA family permit or a residence card issued as a matter of discretion under national law pursuant to regulations 12(4) or 18(4).[62]I do not accept Mr Malik’s submission that regulation 29 of the Regulations confers a right of entry on a non-EEA national who has a qualifying EEA State residence card (that is, a residence card issued under Article 10 of the Directive – in this case Mr Randhawa’s Italian residence card). Regulation 29 is a procedural provision; it does not confer a right of admission. That is clear from the wording, the structure and the purpose of regulation 29.[63]The structure of the Regulations is as follows. Part 2 is concerned with the recognition, or grant, of rights. Part 3 deals with documentation evidencing those rights. Part 4 deals with refusal of admission and removal from the United Kingdom. Part 5 deals with the procedure governing decisions under the Regulations. Part 5 does not itself grant rights. Regulation 29 appears in Part 5 dealing with the procedure governing decisions.[64]The wording of regulation 29 makes it clear that it does not confer a power to grant rights of entry to the United Kingdom. Regulation 29(1) provides that the regulation “applies to a person who claims a right of admission to the United Kingdom” as a person who, amongst other categories of persons, “is in possession of a qualifying EEA State residence card”. The substantive provision is regulation 29(2). That provides that a person to whom the regulation applies “is to be treated as if that person were seeking leave to enter the United Kingdom under the 1971 Act”. Regulation 29(2) does not, therefore, confer a right to enter – rather it says a person claiming a right to admission is to be treated as a person seeking leave to enter under the Immigration Act 1971 (“the 1971 Act”). Such persons are to be treated in that way so that the relevant procedural provisions of Schedule 2 to the 1971 Act apply to them, i.e. they may be subject to examination (paragraph 2), required to take a medical examination (paragraph 7), or detained and searched (paragraphs 16 to 18A).[65]The purpose of regulation 29 is clear. Schedule 2 to the 1971 Act applies to those who are subject to immigration control, i.e. those persons requiring leave to enter and remain in the United Kingdom: see sections 3 and 4 of 1971 Act. During the United Kingdom’s membership of the European Union, and during the transition period, nationals of a Member State and their family members were not required to obtain leave. It was therefore necessary to provide that the powers in Schedule 2 to the 1971 Act applied to persons “claiming a right of admission” under various provisions of European Union law. That explains the purpose in enacting regulation 29 of the Regulations. It was not intended to confer a right to enter or reside. It was intended to regulate the procedure for the examination and determination of claims by persons asserting a right to enter under European Union law.[66]I recognise that regulation 29(1)(a)(v) includes persons who claimed a right of admission because they were in possession of a qualifying EEA State residence card. Some of those persons might be non-EEA nationals who were family members (entitled under European Union law to enter and reside in the United Kingdom). Some might be non-EEA nationals who were extended or other family member granted a right to reside in another Member State under the national law of that Member State. There might have been argument as to whether that last group of persons needed to be included in regulation 29(1)(a)(v) as they would need leave to enter the United Kingdom. However, it is clear that the inclusion of such persons does not alter the underlying purpose of regulation 29. Still less does it alter the wording of regulation 29 which makes it clear that it is a provision governing the procedure for dealing with claims that a person has a right to admission. It is not a provision conferring such rights as a matter of domestic law.[67]I also reject Mr Malik’s submission that it is implicit in regulation 11 that there was a general power or discretion to grant admission as a matter of national law. Regulation 11 prescribed the persons who have a right of admission. They were EEA nationals and their family members and, also, persons falling to be treated as family members because they satisfied the requirements of regulation 7(3) (i.e. they were an extended family member issued with an EEA family permit or residence card under regulation 12(4) or 18(4)). There is no scope for reading regulation 11 as conferring any wider, implied power to grant admission to persons other than those specified.[68]Standing back from the details, therefore, the Upper Tribunal was incorrect in its first four reasons for rejecting the appeal. Mr Randhawa, as a non-EEA national extended family member, was not entitled under Article 5 of the Directive to be admitted to the United Kingdom. Nor did regulation 11 confer a right of admission on Mr Randhawa. He was an extended family member who did not fall to be treated as a family member as he had not been issued with an EEA family permit or residence card under the Regulations. The Upper Tribunal was not correct to hold that Mr Randhawa was entitled to an initial right of residence for up to three months residence under Article 6 of the Directive. For those reasons, the first, second, third and fourth reasons of the Upper Tribunal for dismissing the appeal were wrong.[69]In addition, I reject Mr Malik’s submissions that regulations 11 or 29 of the Regulations conferred a power which could have been used to confer a right of admission on Mr Randhawa as a matter of national law. They did not. What, objectively, did the immigration officer do when allowing Mr Randhawa to pass through border control at Manchester airport?[70]Against that background, I turn then to consider what, objectively, on the evidence available, the immigration officer did when he told Mr Randhawa that “you can go” and allowed him to pass through the border controls at Manchester airport. In particular, it is necessary to consider whether the actions of the immigration officer amounted to the facilitation of residence in accordance with national law, such as to bring Mr Randhawa within the scope of Article 10(2) of the Withdrawal Agreement.[71]On the facts, what happened was that Mr Randhawa and his brother arrived at the airport and presented themselves to an immigration official at the border. The brother showed his Italian passport. Mr Randhawa showed his passport and his Italian residence card which said it was the “residence card of a family member of a Union citizen”. The passports were scanned. No questions were asked, or answered, about why Mr Randhawa was coming to the United Kingdom or for how long. The immigration official then said “you can go”.[72]The natural inference is that the immigration officer thought that Mr Randhawa had a right to enter the United Kingdom under European Union law, probably as a result of being shown the Italian residence card. That is why he told them they could go and let them through without stamping their passport as this is what Article 5(3) of the Directive envisages for those who have a right of entry under European Union law. There is nothing in the events described which suggests that the immigration officer thought that he was a taking a decision under domestic law and nothing to suggest that he was intending to facilitate Mr Randhawa’s residence in the United Kingdom in accordance with national law. To the contrary, the natural inference to draw is that the immigration officer let Mr Randhawa pass through border controls because he mistakenly thought that Mr Randhawa had a right of entry under European Union law.[73]The factual situation is very different from that in Vasa. There, there was evidence that the relevant immigration officer stamped the passports with the words “Admitted under the Immigration (EEA) Regulations 2016” and also stamped them with the words “Immigration officer” and the relevant date. The fact that the immigration officer stamped the passport, and that the stamp said that the person had been “Admitted under the Immigration (EEA) Regulations”, both indicated that the relevant immigration officer, rightly or wrongly, had taken a decision to admit them to the United Kingdom under the domestic regulations so that they could live with their respective relatives. That is why the decisions were, objectively, to be understood as decisions to facilitate Mr Vasa’s, and Mr Hasanaj’s, residence in the United Kingdom in accordance with national law. The immigration officer in Mr Randhawa’s case took no equivalent action.[74]That does not result in any injustice to Mr Randhawa. He was told when his first application was refused (and on each subsequent occasion) that he needed a particular document in order to obtain pre-settled status and how to obtain information about applying for that document. If Mr Randhawa considered that he did meet the requirements for the grant of such a document, he could have applied for it. He did not.[75]For those reasons, Mr Randhawa has not established that his residence in the United Kingdom was facilitated in accordance with national law. He does not satisfy the requirements of Article 10(2) of the Withdrawal Agreement and does not fall within the scope of that Agreement. He cannot, therefore, rely on Article 18(1)(l)(iv) to assist him in claiming the new residence status created under the EUSS. The documents required a person seeking pre-settled or settled status under the new residence status.[76]In those circumstances, it is not strictly necessary to decide what documents Article 18(1)(l)(iv) of the Withdrawal Agreement permits the United Kingdom to require a person to provide if applying for the new residence status. As the matter has been fully argued, and this formed the fifth reason for the Upper Tribunal dismissing the appeal, it is appropriate to express a view on that question.[77]Article 18(1)(l)(iv) provides that the United Kingdom can only require certain documents from those falling within Article 10(2) and (3) of the Withdrawal Agreement and are seeking the new residence status contemplated by that Agreement. Those include “a document issued by the relevant authority in the host state in accordance with Article 3(2)” of the Directive. That provision reflects the fact that the Withdrawal Agreement accepts that the United Kingdom can require properly documented evidence of the grant of the right of residence under national law when a person claims that he has such right and that that right has been preserved, or continued, by reason of the Withdrawal Agreement. The documents that may be required include those specified in the EUSS. They may also include other documents issued by the relevant immigration authorities such as the stamps placed in the passports of Mr Vasa and Mr Hasanaj. The Withdrawal Agreement, however, accepts that it is legitimate for a state to require properly documented evidence of the grant of a right of residence.[78]In the present case, however, Mr Randhawa has no documentary evidence of any grant of a right of residence in the United Kingdom. The fact that an immigration said to him “you can go” does not amount to documentary evidence of the grant of the right. Indeed, the inherent lack of clarity in such a phrase (let alone the possible difficulties of proof as to what was said) demonstrate why it is legitimate to require some properly documented evidence of the grant of a right of residence if a person is to claim that he has such rights and they are protected under the Withdrawal Agreement.[79]I do not accept Mr Malik’s submission that the words spoken by an immigration officer at Manchester airport did constitute an acceptance or adoption of the residence card issued by the Italian authorities so that that residence card can be seen as “a document issued by the relevant authority in the host state” (here the United Kingdom). As a matter of fact, it is fanciful to suggest that that is what an immigration officer meant when he said “you can go”. As a matter of law, Article 18(1)(l)(iv) is concerned with the document issued by the relevant immigration authorities granting a right of residence in the United Kingdom. It is not concerned with the document issued by the Italian authorities showing that Mr Randhawa had the right to reside in Italy. For those reasons, the Upper Tribunal was correct, in its fifth reason, to conclude that even if Mr Randhawa fell within the scope of the Withdrawal Agreement, there was no provision of that Agreement which assisted him in insisting that the United Kingdom had to grant him pre-settled status under the EUSS.

CONCLUSION

[80]I would dismiss the appeal but for reasons different from those given by the Upper Tribunal. Mr Randhawa did not satisfy the requirements of the EUSS for the grant of pre-settled status. He did not fall within the scope of Article 10(2) of the Withdrawal Agreement as his residence in the United Kingdom had not been facilitated in accordance with domestic law. He did not have, and could not rely upon, any provisions of the Withdrawal Agreement to overcome the fact that he did not have the documents needed under the EUSS to qualify for the grant of pre-settled status. LADY JUSTICE WHIPPLE[81]I agree. LORD JUSTICE JEREMY BAKER[82]I also agree.