Hadia Ather Shaikh v The Secretary of State for the Home Department [2026] EWCA Civ 590

Case No CA-2025-003244

IN THE COURT OF APPEAL (CIVIL DIVISION)

[2026] EWCA Civ 590

ON APPEAL FROM THE UPPER TRIBUNAL

(IMMIGRATION AND ASYLUM CHAMBER)

(DEPUTY UPPER TRIBUNAL JUDGE SKINNER)

Venue Strand, London, WC2A 2LL

Date Tuesday, 14 April 2026

Before

LADY JUSTICE ELISABETH LAING

Between

HADIA ATHER SHAIKHAppellant

THE SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent

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MS SAIFOLAHI appeared for Appellant

MR LAIRD appeared for Respondent

Judgment

Crown Copyright©

[1]This is my decision on an application for permission to appeal after an oral hearing which I ordered in my order dated 16 February 2026. I am very grateful to both counsel and their legal teams for their meticulous and helpful consideration of this application.

[2]The appellant ("A") is a national of Pakistan. She applied for leave to remain under the EU settlement scheme ("the EUSS"). The Secretary of State refused her application on 14 September 2023 ("the Decision"). She appealed to the First-tier Tribunal (Immigration and Asylum Chamber) ("the FTT"). The FTT allowed her appeal in determination 2. The FTT held that the decision breached the United Kingdom's obligations under the Withdrawal Agreement, ("the WA"). The Secretary of State appealed to the Upper Tribunal (Immigration and Asylum ) ("the UT") on the ground that the FTT had failed to consider whether A was in the scope of Article 10 of the WA as at 31 December 2020 ("the relevant date"). The Secretary of State argued that A was not because her younger sister ("S") reached the age of 18 before the relevant date. The UT held in determination 3 that the FTT had materially earned in law in determination 3 that the FTT had materially erred in law in determination 2. The UT also remade the decision, dismissing A's appeal. A now appeals against determination 3. Paragraph references are to determination 3 unless I say otherwise.

[3]As I noted in my order, the appeal potentially concerned A's former status as a "Chen carer" for S, an Irish citizen (Chen v Secretary of State for the Home Department C-200/02

[2005] QB 325

("Chen"). S's 18th birthday was on 22 November 2020. S's primary carers were in fact her father and, after her entry to the United Kingdom and until her death, S's mother. The UT referred to an earlier determination of the FTT in 2019 ("determination 1") in an appeal brought by, among others, A. Pursuant to determination 1, the Secretary of State issued an EEA Family Permit, and on 29 August 2019, A, her mother and her brother ("M") entered the United Kingdom. All members of the family have lived in the United Kingdom since then. A's mother died in 2022. That family permit expired on 7 February 2020. Ms Saifolahi helpfully told me that such permits are usually issued for a period of six months.

[4]A and M and other members of the family applied for pre-settled status under the EU SS. In February 2020 the Secretary of State granted three of the applications. The Secretary of State refused A's application because she used the wrong form. A and her father applied again on 26 October 2020. The Secretary of State refused A's application but granted that of her father. A did not receive the relevant email in time, appealed out of time and was refused an extension of time for appealing. She made a further application under the EU SS on 4 August 2023.

[5]There was no dispute that the FTT had not considered Article 10 of the WA in determination 2. A argued that she did not need to be within Article 10 and, if she did:(1) She did not cease to reside in the United Kingdom in accordance with EU law when S reached the age of 18. She would not have done so until S was 21.(2) The Secretary of State was estopped by an earlier decision of the FTT, that is, determination 1, and by a later grant of leave, from denying that A was residing in accordance with EU law. (3) It was irrational to refuse leave to remain to A when the Secretary of State had given it to M, whose circumstances were the same.(4) The Secretary of State had not relied on this argument in the FTT and could not rely on it in the UT.The UT held that there were four issues (paragraph 6). The UT acknowledged that they were not entirely straightforward (paragraph 7).

[6]There were originally two grounds of appeal to this court. I refused ground 1 in my order in February this year. In brief, it was that the UT had erred in law in holding that A did not fall within Article 10(1)(e)(i) of the WA. That argument had three limbs. Ground 2 was that the UT had erred in law in not applying Article 10(2)(iii) and (5) to A's circumstances. There were four parts of this argument:(1) A was granted a family permit. She entered the United Kingdom before the relevant date and applied for pre-settled status before the relevant date. The United Kingdom had therefore facilitated her residency in the United Kingdom before the relevant date in accordance with national legislation, and A has continued to live in the United Kingdom after that.(2) The UT was wrong to distinguish A's case from Vasa v Secretary of State for the Home Department [2024] EXCA Civ 777;

[2025] 1 WLR 39

("Vasa").(3) The UT also erred in law in not applying Article 10(5) of the WA and closely examining A's family circumstances.(4) The UT's finding that A's residence had been unlawful since 7 February 2020 (the date when the family permit expired) was irrelevant because A had made an application under Appendix EU before the relevant date.

[7]The UT noted that determination 1 did not explain on what legal basis the FTT had, in determination 1 allowed A's appeal (or M’s appeal). The Secretary of State accepted that A must have been found to have some form of derivative right to reside (paragraph 21). The UT analysed determination 1 (paragraphs 14 to 21). At the time of determination 1, A and M were both adults, nor did they claim to be A's primary carers. M had been under 18 at the date of the application. A and M claimed to be part of the family unit and to enjoy family life with their parents and sponsor, with the result that the refusal would be disproportionate. There was no explanation of the nature of A's right other than that the refusal was "disproportionate under EU law". The UT said there was no dispute that S was at all times exercising her rights to reside in accordance with EU law. The UT added that to be within Article 10, A's presence had to be necessary in order not to deprive S of the right of residence granted to S under Article 9(a)(ii) of the WA, and A had to have resided in the United Kingdom in accordance with EU law before the end of the relevant period and to continue to do so after that (Article 10(1)(e)(i)) (paragraph 33).

[8]One of A's arguments was that the grant of the family permit in 2019 barred the Secretary of State from denying that A had a valid right of residence. She relied on Vasa. The UT distinguished Vasa on two different bases. One of those was that whatever its effect when issued, the family permit was not evidence of the existence of any fact beyond the date when it expired. In Paragraph 56 the UT rejected A's submission that the adverb "immediately" should not be read into Article 10(1)(e)(i) to qualify the word "before" for the three reasons it gave in paragraph 56. A did not appear to challenge that conclusion. The premise of A's submission that 22 November 2020 was "in effect immediately before the relevant date" is that the UT did not err in law in reading in the word "immediately".

[9]The next issue which the UT considered was whether on S's 18th birthday, which was before the relevant date, any derivative rights held by A ceased. The UT decided that question in accordance with the relevant decisions of the court of justice about the Chen derivative right. That right ceased other than exceptional circumstances when the EEA National child reached the age of 18. By the time of the UT's remaking decision "… there [was] no suggestion that [S] is anything other than a regular, almost 23-year-old young woman". The UT held that any derivative right of residence ceased on 22 November 2020 (paragraph 61). The UT rejected an argument that the relevant age was 21 for the reasons which it gave in paragraph 62.

[10]Ground 1 was based on the assumption that A had a right to reside in accordance with EU law. Ground 2, as I thought when I gave the reasons for my order in February, seemed to be based on an alternative contention that A did not have such a right but that her entry into and residence in the United Kingdom as an "extended family member" (within the meaning of Article 3 of the Citizens' Rights Directive) was facilitated by the United Kingdom in accordance with national law, that is to say, in accordance with the 2016 Regulations. A did not run this alternative argument in the UT, and she accepts that now. She only relied on her right to residence in accordance with EU law based on Chen.

[11]When I made my order, I decided that it would be right to consider this argument and I said something about the facts of Vasa and how Vasa differed from this case. What I was not clear about when I made my order was whether it was arguable that A could rely on Article 10(3) and Article 10(5). At that stage, I thought that whether A could rely on Article 10(3) depended on which of her applications was the relevant application for the purposes of Article 10(3) of the WA, the first application having been made in time but having been rejected because it was on the wrong form. That was why I called this in for an oral hearing.

[12]I am very grateful for the very clear and fair oral submissions made by Mrs Saifolahi on behalf of A. She made economical and lucid submissions and made all the points which she could possibly have made on A's behalf. In order to understand the arguments, it is necessary to bear in mind the words of some of the relevant provisions. They were helpfully set out in A’s most recent skeleton argument. I will not lengthen this oral judgment by reciting them now. The first relevant provision is Article 3 of the Citizens' Rights Directive 2004/38/EC (see paragraph 14 of that skeleton argument). The second relevant provision is Article 9 of the WA (see paragraph 15 of that skeleton argument). The third is Article 10(1)(e) (see paragraph 16 of that skeleton argument). The fourth and fifth are Articles 10(2) and (3) of the WA (see paragraph 17 of that skeleton argument.)

[13]Both sides relied on the decision of this court in Celik v Secretary of State for the Home Department

[2023] EWCA Civ 921

; [2023] IMM AR 5. Celik decides, among other things, that Article 10(2) of the WA refers to applications made and granted before the end of the relevant period, and that Article 10(3) of the WA applies to applications made before the end of the relevant period but granted after the end of the relevant period. A now relies only on the 2017 application for a family permit, which resolves the matter about which I was confused when I made my order in February. She does not rely on any later application, as Ms Saifolahi confirmed in her oral submissions (and see paragraph 29 of her skeleton argument). She submits that the grant of a family permit coupled with the findings of the FTT mean that it is arguable Article 3(2) of the Directive applies to her case and that therefore Article 10(3) of the WA also applies. She argues that it does not matter for this purpose that the application for the family permit was made and granted before the end of the relevant period. Article 10(3), she submits, does not require her residence to have been lawful from 7 February 2020 onwards. Article 10(3), unlike Article 10(1)(e), does not require residence before the end of the relevant period in accordance with the EU law.

[14]Mr Laird made several arguments in his very helpful written skeleton argument which show that neither Article 10(2) nor Article 10(3) of the WA apply to this case. Most fundamentally, he argued that A is not in either limb (a) or limb (b) of Article 3(2)(a) of the Directive. The application was not made or granted on either basis. A applied as the dependant of two Chen carers of an EU citizen, and her application was not an application for facilitation. If that is right, Article 10(3) of the WA does not apply to her case; nor does Article 10(2). Further, she made no application, he submits, for facilitation before the end of the relevant period. He relies on paragraph 95 of Celik and on paragraph 33 of Emambux v Secretary of State for the Home Department

[2024] EWCA Civ 1459

for the proposition that an application for facilitation means an application for an EU family permit or residence card before the end of the period. The application which is the subject of the present proceedings was made in 2023, two and a half years after the end of the relevant period. It follows from those submissions, he further submits, that A cannot rely on Article 10(5) of the WA.

[15]I accept Mr Laird's submissions. The basis on which the FTT allowed the appeal which led to the grant of the family permit is wholly obscure, but there is nothing in the facts of this case which means that the decision of the FTT or the grant of the family permit could have acknowledged that A was within Article 3(2) of the Directive when she simply was not, on any view. That is sufficient to dispose of this application. The facts are so unusual that I do not consider that it raises a wider issue of principle or practice, and the second appeals test is therefore not met.

[16]For those reasons, I dismiss this application for permission to appeal. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400 Email: civil@epiqglobal.co.uk