Ghulam Batool & Ors v Entry Clearance Officer [2022] UKUT 219 (IAC)

[2022] UKUT 00219 (IAC)Batool and others (other family members: EU exit)
Upper Tribunal
(Immigration and Asylum Chamber)
Venue Heard at Field HouseHearing Heard on 31 March 2022
THE IMMIGRATION ACTS
Further written submissions on 26 April and 11 May 2022
Promulgated on 19 July 2022
Before
THE HON. MR JUSTICE LANE, PRESIDENTUPPER TRIBUNAL JUDGE SMITH
Between
GHULAM BATOOLAppellantMUHAMMAD ALIAppellantMUHAMMAD ABEERAppellantHAIDER SULTANAppellant(ANONYMITY DIRECTION NOT MADE)AppellantENTRY CLEARANCE OFFICERRespondentMr R De Mello and Mr R Ahmed, Counsel, instructed by jJ Law Chambers for appellantMs J Smyth, Counsel, instructed by Government Legal Department for respondent(1) An extended (oka other) family member whose entry and residence was not being facilitated by the United Kingdom before 11pm GMT on 31 December 2020 and who had not applied for facilitation of entry and residence before that time, cannot rely upon the Withdrawal Agreement or the immigration rules in order to succeed in an appeal under the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020.
Between
Such a person has no right to have any application they have made for settlement as a family member treated as an application for facilitation and residence as an extended/other family member.DECISION AND REASONSDate 2022-07-19

INTRODUCTION

[1]This appeal concerns the position of those who are, or claim to be, “other family members” within the meaning of Article 3.2 of Directive 2004/38/EC (“the Directive”), in the light of the departure of the United Kingdom from the European Union and in the context of the EU Settlement Scheme (“EUSS”). We are grateful to Mr De Mello, Mr Ahmed and Ms Smyth for their helpful written and oral submissions.[2]The first and second appellants are sister and brother, aged 17 and 10 at the date of the application to the respondent. The father of the first and second appellants is Chaudhary Ghulam Shabbir. The third and fourth appellants are brothers, aged respectively 13 and 10 at the date of the application. Their father is Muhammed Amir Chaudhry.[3]The parental grandparents of the appellants were issued with EUSS family permits in January 2020, in reliance on the grandparents’ relationship with Persida Sultan, a Romanian national. Persida Sultan is the daughter-in-law of the grandparents, being married to their son, Zahoor Sultan (who is the brother of the appellants’ fathers). Zahoor Sultan is, accordingly, the paternal uncle of all four of the appellants; and Persida Sultan is their aunt by marriage.[4]Having been granted their EUSS family permits, the grandparents entered the United Kingdom on 17 July 2020. They were granted limited leave to remain under Appendix EU on 23 September 2020 (grandfather) and 2 October 2020 (grandmother).[5]The appellants made their applications to the respondent on 3 February 2020. The applications were made under the EUSS by reference to Appendix EU (Family Permit) to the Immigration Rules (“Appendix EU (FP)”). At that time, the appellants were living in Pakistan with their grandparents. After those grandparents travelled to the United Kingdom, the appellants were living with a woman from their village who was employed to look after them.[6]On 21 December 2020, Zahoor Sultan took the grandparents back to Pakistan.[7]The appellants’ applications were refused by the respondent on 20 February 2020 on the basis that none of them met the eligibility requirements for an EUSS family permit. This was because, unlike the grandparents, the appellants were not family members of Persida Sultan for the purposes of the EUSS.

THE APPEALS

[8]The appellants appealed against that decision, pursuant to regulation 3 of the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 (“the 2020 Appeals Regulations”). Their appeals were heard by First-tier Tribunal Judge Higgins on 7 June 2021.[9]At paragraph 8 of his decision, the First-tier Tribunal Judge recorded that the appellants’ representative acknowledged that “none of the appellants could meet the eligibility requirements in Appendix EU (Family Permit) of the Immigration Rules for the reason the ECO had identified”. The Judge’s decision continues as follows:
“9. Since the decisions against which the Appellants had appealed were, Mr Makol conceded, in accordance with the withdrawal agreement and the Immigration Rules, the sole basis on which the appeals would now be presented was that the ECO’s decisions were incompatible with the respect for private and family life the Appellant’s enjoyed to which they are entitled by Article 8 of the European Convention on Human Rights and, for that reason, unlawful by virtue of section 6 of the Human Rights Act 1998. 10. Mr Makol accepted that the relevant family life had to be family life the Appellants enjoyed with the relevant EEA national and her husband, that is with Zahoor and Persida Sultan. Mr Makol also accepted that the appeal in the form in which it would now be presented had never been the subject of explicit consideration by an ECO and was a new matter for the purposes of section 85(5) of the Nationality, Immigration and Asylum Act 2002. 11. The presenting officer, Mr Yeboah, agreed. He requested that he be afforded an opportunity to consult a senior caseworker and, having done so, told me the ECO consented to the new matter being determined by the Tribunal and Mr Yeboah told me he was in a position to proceed.”
[10]Having considered various witness statements, and following the discovery that Persida Sultan was unable to give evidence in English (paragraph 20), the decision continued as follows:
“21. The first, and crucial, issue it was agreed I have to determine is whether family life exists between the Appellants and their paternal uncle and his wife in the UK for the purposes of Article 8. It is for the Appellants to establish, more likely than not, it does. If it does not, the refusals to grant family permits would not have interfered with any family life the Appellants enjoyed. 22. The application for a guardianship certificate in March 2020 was plainly not made to facilitate the issue of passports to the Appellants, as Zahoor Sultan suggested, because they had been issued with passports in September 2019. I consider it more likely the application for a guardianship certificate was made because it was thought there might be some advantage in doing so in the context of the Appellants’ appeals. 23. Mr Yeboah did not accept that the order purportedly recording a decision to issue the Appellants’ grandfather with a guardianship certificate was necessarily authentic because of the manner in which it is phrased. But irrespective of the guardianship certificate, I accept the Appellants were, and remain, to some degree dependent on their paternal grandfather, and I do not doubt that family life exists between their grandparents and them. 24. I also accept, as indeed an ECO was satisfied, that the Appellants’ grandparents are to some degree dependent on monies they received from Zahoor and Persida to meet their essential needs. 25. The Appellants’ grandparents have put themselves in the unenviable position of having to choose whether to live in the UK with their son and daughter-in-law or remain in Pakistan with their grandchildren. But the First and Second Appellants’ mother is in Pakistan living with her family, the Third and Fourth Appellants’ mother similarly, and the Third and Fourth Appellants’ father could return to Pakistan from Saudi Arabia to oversee his children’s care 26. Convenient as it may be for the Appellants to live with their grandparents and uncle in the UK, they have not satisfied me that the emotional ties that exist between them and their uncle and his wife in the UK are significantly closer or stronger than the emotional ties which conventionally exist between an uncle and his nephews and nieces; and since they have not satisfied me that they enjoyed, or currently enjoy, family life with their uncle and aunt in this country, refusal of family permits did not interfere with any family life they enjoyed. The decisions against which they have appealed are, I am satisfied, entirely compatible with respect for their family and private life to which the Appellants are entitled by Article 8 of the ECHR and for those reasons I dismiss the appeals.”
[11]Permission to appeal was granted by the First-tier Tribunal on 6 September 2021. There has since been case management by the Upper Tribunal, in light of the fact that it was considered these appeals might raise issues of general significance.

LEGAL FRAMEWORK

[12]In light of the volume and complexity of the legislative framework surrounding these appeals, we have set out the provisions which are relevant to the arguments in an Annex to this decision.

THE APPELLANTS’ CASE

[13]Mr De Mello advances the appellants’ case as follows. As a matter of domestic law, the appellants do, in fact, fall within the scope of the expression “family member of a relevant EEA citizen” in Appendix EU (FP). Those immigration rules fall to be interpreted in the light of the Agreement on the withdrawal of the United Kingdom and Great Britain and Northern Ireland from the European Union etc (“the Withdrawal Agreement”). Decisions of the Court of Justice of the European Union as to who constitute “other family members” within Article 3(2) of the Directive are binding on courts and tribunals by reason of Article 4 of the Withdrawal Agreement.[14]Mr De Mello places particular emphasis in this regard on the judgment of the CJEU in SSHD v Rahman and Others [2013] QB 249; [2013] Imm AR 73 (“Rahman”), in which the Court set out the obligations on Member States in respect of facilitating the entry and residence of other family members within Article 3(2)(a) of the Directive.[15]The appellants contend that other family members who have applied for a residence card or immigration document fall within the scope of the Withdrawal Agreement; specifically, Article 10(3). Pursuant to Article 10(5) they are accordingly entitled to be issued with a residence document. Article 7 of the Withdrawal Agreement applies to “provisions of Union law made applicable by this Agreement”. This includes Article 3(2) of the Directive, referred to in Article 10(3) of the Withdrawal Agreement.[16]Mr De Mello contends that Article 18 of the Withdrawal Agreement requires the United Kingdom to issue residence documents to family members and “other persons”, that expression being a shorthand for extended family members and those in a durable relationship.[17]The appellant made a relevant application, which resulted in an appealable decision under the 2020 Appeal Regulations. The grounds of appeal asserted “although obliquely” that the appellants were family members. The First-tier Tribunal was, accordingly, bound to decide that question as it was raised as a ground of appeal. Regulation 10 requires the tribunal, as a relevant authority, to determine any matter raised as a ground of appeal.[18]Mr De Mello submits that the concession made by the representative of the appellants before the First-tier Tribunal Judge was wrong. The appellants are family members of a relevant sponsor. This is because they are the nieces/nephews of the sponsor’s husband who have been and continue to be financially dependent on the sponsor/husband and who have been and continue to be a member of the sponsor/husband’s household in Pakistan.[19]Concerning Article 8 of the ECHR, Mr De Mello submits that the First-tier Tribunal was required to “go on to decide the merits of the appeal, on invitation, in accordance with Article 7 and 24 of the Charter of the Fundamental Rights of the EU (“the EU Charter”) and then if necessary go on to consider Article 8 ECHR and section 55” of the Borders, Citizenship and Immigration Act 2009 (best interests of child). In this regard, Mr De Mello seeks to invoke the CJEU’s judgment in Dereci and Others v Bundesministerium für Inneres [2012] 1 CMLR 45; [2012] Imm AR 230 (“Dereci”). We understand Mr De Mello to place particular reliance on these paragraphs of the judgment:
“– The right to respect for private and family life 70. As a preliminary point, it must be observed that insofar as art.7 of the Charter of Fundamental Rights of the European Union (“the Charter”), concerning respect for private and family life, contains rights which correspond to rights guaranteed by art.8(1) of the ECHR, the meaning and scope of art.7 of the Charter are to be the same as those laid down by art.8(1) of the ECHR, as interpreted by the case law of the European Court of Human Rights (McB v E (C-400/10 PPU) [2011] I.L.Pr. 24 at [53]). 71. However, it must be borne in mind that the provisions of the Charter are, according to art.51(1) thereof, addressed to the Member States only when they are implementing EU law. Under art.51(2), the Charter does not extend the field of application of EU law beyond the powers of the Union, and it does not establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties. Accordingly, the Court is called upon to interpret, in the light of the Charter, the law of the European Union within the limits of the powers conferred on it (McB [2011] I.L.Pr. 24 at [51], see also Criminal proceedings against Gueye (C-483/09 & C-1/10) [2012] 1 C.M.L.R. 26 at [69]). 72. Thus, in the present case, if the referring court considers, in the light of the circumstances of the disputes in the main proceedings, that the situation of the applicants in the main proceedings is covered by EU law, it must examine whether the refusal of their right of residence undermines the right to respect for private and family life provided for in art.7 of the Charter. On the other hand, if it takes the view that that situation is not covered by EU law, it must undertake that examination in the light of art.8(1) of the ECHR.”
[20]Alternatively, the appellants submit that their “underlying case was a human rights claim”, the refusal of which was appealable: section 82(1) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”); Baihinga (r.22; human rights appeal: requirements) [2018] UKUT 00090 (IAC); [2018] Imm AR 930.[21]The appellants argue that nothing in the 2002 Act or the 2020 Appeal Regulations precluded them from making a human rights claim or having it decided by the First-tier Tribunal under section 82(1)(b) of the 2002 Act. In any event, Article 8 of the ECHR can be raised as a ground of appeal at first instance, as it was relevant to the substance of the decision. It was not a “new matter”. Even if it was such a matter, the presenting officer before the First-tier Tribunal Judge consented to Article 8 being considered.[22]In further written submissions of 11 May 2022, Mr De Mello and Mr Ahmed reiterate that the appellants fall within Article 10(3) of the Withdrawal Agreement, as they applied for facilitation of entry and residence before the end of the transition period (23:00 GMT, 31 December 2020) and their residence is being facilitated by the host State. The words “national legislation thereafter” in Article 10(3) do not simply refer to and end with the Immigration (European Economic Area) Regulations 2016 (“the 2016 Regulations”), as contended by the respondent. They refer to national legislation enacted by the United Kingdom in connection with its withdrawal from the EU. The European Union (Withdrawal Agreement) Act 2020 (“the 2020 WA Act”) and the EUSS established under the immigration rules provide for the domestic implementation of the United Kingdom’s obligations under the Withdrawal Agreement. Given that the appellants applied for entry clearance before 31 December 2020 and their application was decided after that date, they continue to be beneficiaries under Article 10 of the Withdrawal Agreement. In this regard, emphasis is placed on section 17 of the 2020 WA Act, which provides for “residence scheme immigration rules” to give effect to the Withdrawal Agreement. Furthermore, and in any event, the appellants had made a valid application which should have been treated by the respondent as an application under the 2016 Regulations.[23]As to Article 8, Mr De Mello and Mr Ahmed reiterate that where an individual has made an application which also consists of “an underlying Article 8 ECHR claim” and this has been considered by the respondent, then it is not a “new matter” and the First-tier Tribunal must therefore consider the merits of it, without requiring the consent of the Secretary of State.[24]In addition, the appellants reiterate their argument that the EU Charter applies to their appeals under the 2020 Appeal Regulations. Although section 5(4) of the European Union (Withdrawal) Act 2018 (“the 2018 Act”) states that the Charter is not part of domestic law on or after “IP completion day” (31 December 2020), section 5(5) explains that this does not affect the retention in domestic law thereafter of any fundamental rights or principles which exist irrespective of the EU Charter.[25]The Withdrawal Agreement refers to the EU Charter in its recitals and in Articles 2, 4, 6, 7 and 9. Article 4 states that provisions of the Withdrawal Agreement which are based on EU law must be interpreted in the United Kingdom in conformity with the case law of the CJEU handed down before the end of the implementation period. As we understand them, this means, according to Mr De Mello and Mr Ahmed, that, on the basis of Dereci, decisions involving other family members must be reached in a way that is compatible with the provisions of the Charter of Fundamental Rights, with the result that the First-tier Tribunal must address such issues in an appeal under the 2020 Appeal Regulations. No issue arises here as to the need for the Secretary of State to consent to a “new matter”. DISCUSSION

The concession

[26]The first matter to address is the status of the concession made by the appellants’ representative to the First-tier Tribunal Judge, that the appeal decisions were “in accordance with the withdrawal agreement and the Immigration Rules” (paragraph 9 of the decision). Ms Smyth submits that the appellants have not addressed the relevant criteria, which need to be satisfied in order to persuade a court or tribunal that a concession may be withdrawn.[27]In AM (Iran) v SSHD [2018] EWCA Civ 2706, Simon LJ accepted that the Court of Appeal “may, depending on the circumstances, permit a concession that was made in a tribunal hearing to be withdrawn. There are no all-embracing principles that will apply beyond those implicit in CPR Part 1.1” (paragraph 40). CPR.1.1 concerns the overriding objective, whereby the court will “deal with cases justly and at proportionate cost”.[28]At paragraph 44, Simon LJ noted that parties seeking to withdraw a concession may not be able to do so easily, in reliance on principles of justice and fairness, particularly where it is sought to do so in a belated and informal way. Nevertheless, at paragraph 45, he noted leading counsel for the respondent as accepting “that a concession could be withdrawn if this were in the overall interest of justice”.[29]Since the scope of the Withdrawal Agreement and the EUSS is an issue that has wider ramifications than for merely the present appellants, and since that issue had been highlighted in the Upper Tribunal’s case management of these appeals in a way that enabled the parties to address it in detail, we consider that it is, in the circumstances, appropriate to permit the appellants to withdraw the concession.

Other family members

[30]These appeals are concerned with “other family members”, to use the expression found in Article 3(2) of the Directive. They are described as “extended family members” in the 2016 Regulations. In order to address the appellants’ submissions, it is necessary to examine the legal position of this category of person.[31]Article 3(2) of the Directive requires other family members to be persons who do not fall within the definition of “family member” in Article 2. A “family member” means the spouse or partner of a Union citizen; direct descendants under the age of 21 or dependants (either of the Union citizen of the spouse/partner); and dependant direct relatives in the ascending line (and those of the spouse/partner) (which we emphasise would include the appellants’ grandparents). There is, thus, a fundamental distinction between a “family member” and “any other family members” for the purposes of the Directive.[32]In order to fall within Article 3(2) the other family member must be a dependant or member of the household of the Union citizen in the country from which they have come; or there must be serious health grounds strictly requiring the personal care by the Union citizen. In addition, a person may be an other family member if they are the partner with whom the Union citizen has a durable relationship, duly attested.[33]A host Member State is required by Article 3(2) to “undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people”.[34]Recital 6 to the Directive explains the background. In order to maintain the unity of the family in a broader sense, the situation of those who are not included in the definition of family members “and who therefore do not enjoy an automatic right of entry and residence in the host member state” is to be examined by that State “on the basis of its own national legislation” so as to decide whether entry and residence could be granted. In doing so, the host Member State will take into consideration the person’s relationship with the Union citizen or any other circumstances, such as their financial or physical dependence on that citizen.[35]As the respondent submits, the purpose of granting such rights is to protect the right to free movement of the Union citizen, rather than to protect family life.[36]Importantly, even if a person satisfies the requirements to be an other family member, Member States are under no obligation to accord that person a right of entry and residence. The obligation is merely to “facilitate” entry and residence.[37]In Rahman, the CJEU held at paragraph 21 that it is “apparent that Article 3(2) of Directive 2004/38 does not oblige the Member States to accord a right of entry and residence to persons who are family members, in the broad sense, dependent on a European citizen”. The obligation to “facilitate” in Article 3(2) was an obligation on the Member State “to confer a certain advantage, compared with applications for entry and residence of other nationals of third States, on applications submitted by persons who have a relationship of particular dependence with a Union citizen”.[38]At paragraph 22, the court explained this meant such persons should be able “to obtain a decision on their application that is founded on an extensive examination of their personal circumstances and, in the event of refusal, is justified by reasons”.[39]At paragraph 24, the court held that each Member State “has a wide discretion as regards to the selection of the factors to be taken into account” in deciding whether a person’s entry and residence should be facilitated. Even though the wording of Article 3(2) “is not sufficiently precise to enable an applicant … to rely directly on that provision in order to invoke criteria which should in his view be applied when assessing his applications”, the court concluded that the applicant was, at least, “entitled to a judicial review of whether the national legislation and its application have remained within the limits of the discretion set by that Directive.” (paragraph 25).[40]Until 31 December 2020, the Directive was implemented in the United Kingdom by means of the 2016 Regulations. As mentioned, these Regulations described other family members as “extended family members”. Provision was made in regulations 12(4) and (5) and 18(4) and (5) for the issue of EEA family permit and residence cards to extended family members.[41]An extended family member who had been issued with a residence card was, by reason of regulation 7(3) to be treated as a family member, for as long as they continue to satisfy the relevant condition in regulation 8 and provided the residence card remained in force. It is important to observe that regulation 7(3) of the 2016 Regulations did not affect the distinction drawn by the Directive between family members and other family members. On the contrary, it underscored the fact that, unlike the family members whose rights flow directly from their position as such, other family members have no such status, unless and until issued with the relevant permit, certificate or card. See SSHD v Aibangbee [2019] EWCA Civ 339; [2019] Imm AR 979; Macastena v SSHD [2018] EWCA Civ 1558; [2019] Imm AR 28.[42]Amongst the other Court of Appeal judgments on extended family members are Chowdhury v SSHD [2021] EWCA Civ 1220; [2021] Imm AR 1748 (a person will not qualify if there has been a break in their dependency since coming to the United Kingdom) and Soares v SSHD [2013] EWCA Civ 575; [2013] Imm AR 1096 (the dependency must be on an EU citizen, rather than a third country family member of such a citizen).

Effect of the United Kingdom’s withdrawal from the EU

[43]It is now necessary to examine the position of other family members (or those claiming to be so) in the light of the United Kingdom’s departure from the EU on 31 January 2020.[44]Section 1 of the 2018 Act repealed the European Communities Act 1972 on “exit day”, which was defined by section 20 as 11pm on 31 January 2020. However, exit day was followed by an implementation period (also referred to as the transition period) which ended on “IP completion day”, as defined in section 39 of the 2020 WA Act as 11pm on 31 December 2020. During the implementation period, the 1972 Act continued to have effect pursuant to section 1A of the 2018 Act, as amended by the 2020 WA Act.[45]EU free movement rights lost both their direct effect and their enforceability from 11pm on 31 December 2020. The Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (“the 2020 EU Withdrawal Act") revoked the 2016 Regulations and prevents them (along with relevant rights deriving from provisions of the Treaties to the extent that they are not implemented in domestic law) from continuing to have effect as retained the EU law, pursuant to sections 2 and 4 of the 2018 Act.[46]Relevant transitional provisions are contained in the Immigration and Social Security Coordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020 (“the 2020 Consequential Regulations”).[47]Paragraph 3 of Schedule 3 to the 2020 Consequential Regulations makes specific provision in respect of pending applications for documentation under the 2016 Regulations. In particular, paragraph 3(1) provides for regulation 12 of the 2016 Regulations to continue to apply to an application for an EEA family permit, “which was validly made in accordance with the EEA Regulations 2016 before commencement day” (11pm on 31 December 2020). Save as expressly preserved by the transitional provisions, the 2016 Regulations no longer apply because they have been revoked by the 2020 EU Withdrawal Act.[48]Crucially, therefore, since 1 January 2021, the Secretary of State has not been able to consider an application for an EEA family permit, except where a valid application was made before that date (or where paragraph 3(2) of Schedule 3 to the 2020 Consequential Regulations applies, which is not the position here).[49]In order to make a valid application, a person needed to have complied with regulation 21 of the 2016 Regulations. That required an application to be submitted online, by post or in person, using a specified application form. It is common ground that the appellants did not make a valid application for an EEA family permit in accordance with regulation 21, before the end of the transition period even though they could have done so.

The Withdrawal Agreement

[50]The Withdrawal Agreement was signed on 19 October 2019. Article 126 contains a transition period. That period started on the day of entry and to force of the Agreement and ended on 23:00 hours GMT on 31 December 2020. During that period, EU law continued to apply in the United Kingdom.[51]Article 4 of the Withdrawal Agreement provides for individuals to be able to rely directly on provisions of the Agreement which meet the conditions for a direct effect under EU law. Pursuant to Article 4, the Withdrawal Agreement is given such direct effect in the United Kingdom by section 7A of the 2018 Act.[52]Part 2 of the Withdrawal Agreement makes provision in relation to citizens’ rights. Both Articles 10 and 18 are contained within Part 2.[53]As is apparent from Article 18.1 and 18.4, the Withdrawal Agreement allows a host State to introduce “constitutive residence schemes”, which means that EU citizens and their direct family members can now be required to apply for residence rights, as opposed to enjoying them by virtue of their status and activities in the host Member State.[54]As we have seen, however, other family members never enjoyed automatic residence rights under EU law. Not only did an individual have to satisfy the definition of other family member (extended family member under the 2016 Regulations); they also had to be the beneficiary of a positive exercise of discretion, recognised by the grant of residence documentation (albeit that such discretion was not unfettered: see Rahman).[55]Article 18.1 explains who, in the case of a constitutive residence scheme, is entitled to apply for a new residence status, which confers the rights under Title II of Part 2. Title II includes Articles 10 and 18. The persons concerned are “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”.[56]Article 10 tells us who these persons are. Article 10.1(e) and (f) refer to “family members”. The expression “family members” is defined in Article 9. The definition does not encompass “other family members” within the meaning of Article 3(2) of the 2004 Directive. Such persons are brought within the application of Part 2 of the Withdrawal Agreement by Article 10.2:
“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.”
[57]As explained in Article 10.3, Article 10.2 also applies to persons falling under points (a) and (b) of Article 3(2) of the Directive, provided they “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”.[58]The reference to “national legislation” reflects the fact that the arrangements for other family members are primarily regulated by domestic law: see Rahman.[59]We turn to the EUSS. This is the United Kingdom’s Residence Scheme, pursuant to Article 18 of the Withdrawal Agreement. The EUSS was introduced on 30 March 2019. It enables EU, other EEA and Swiss citizens resident in the United Kingdom by the end of the transition period, and their family members, to obtain the necessary immigration status in order to reside lawfully in the United Kingdom, following this country’s exit from the EU.[60]Appendix EU (FP) applies to persons residing outside the United Kingdom. It contains the conditions for the grant of either(a) an EUSS family permit to join a relevant EEA citizen or a qualifying British citizen in the United Kingdom or to accompany them to the United Kingdom; or(b) an EUSS Travel Permit. FP6(1) and (2) contain the eligibility requirements for entry clearance to be granted in the form of an EUSS family permit. FP6(1) is the relevant provision in the case of the appellants. It requires them to be “family members of a relevant EEA citizen”, as defined in Annex 1. In short, a “family member of a relevant EEA citizen” must be a spouse, civil partner or durable partner of a relevant EEA citizen; or be the child or dependant parent of such a citizen, or of that citizen’s spouse or civil partner.

The appellants’ applications to the respondent

[61]From the formal introduction of the EUSS on 30 March 2019 until 31 December 2020, EEA citizens and their family members could apply either under the 2016 Regulations or under the EUSS.[62]There was publicly available guidance on www.gov.uk website as follows:
“EU Settlement Scheme family permit until 31 December 2020 Apply for the EU settlement scheme family permit if you’re the close family member of: • An EU, EEA or Swiss citizen and I have ‘settled’ or ‘pre-settled’ status under the EU Settlement Scheme • An Irish citizen (they don’t need to apply to the EU Settlement Scheme, but must meet the eligibility criteria) • An eligible person of Northern Ireland (they must also meet the criteria for the EU settlement scheme, even though they cannot apply) • An eligible British citizen who also has EU, EEA or Swiss citizenship, and who lived in the UK as an EU, EEA or Swiss citizen before getting British citizenship You must be a ‘close’ family member, such as a spouse, civil partner, dependent child or dependent parent. (from 1 January 2021 EU, EEA or Swiss family members of an EU, EEA or Swiss citizen who was resident in the UK before 1 January 2021 will also be able to apply for the EU Settlement Scheme family permit). EU family permit until 31 December 2020 Apply for the EEA family permit if you’re the family member of an EU, EEA or Swiss citizen. You can be a close or ‘extended’ family member – for example a brother, sister, aunt, uncle, cousin, nephew, niece or unmarried partner. Extended family members must apply before 11pm on 31 December 2020. After this, only close family members and unmarried partners will be able to apply. Check if you’re eligible and apply for the EEA family permit. There are other ways you may be eligible for an EEA family permit, for example: • with a ‘derivative right of residence’ – you’re the primary carer of a British, EU, EEA or Swiss child or British adult dependent, the primary carer’s child, or the child of an EU, EEA or Swiss citizen who previously worked in the UK • if you can make a ’Surinder Singh’ application after living in an EEA country or Switzerland with a British family member • with a ‘retained right of residence’ – you have the right to stay in the UK as the family member of an EU, EEA or Swiss citizen who has died, left the UK or is no longer your spouse or civil partner …”
Apply for the EU settlement scheme family permit if you’re the close family member of: • An EU, EEA or Swiss citizen and I have ‘settled’ or ‘pre-settled’ status under the EU Settlement Scheme • An Irish citizen (they don’t need to apply to the EU Settlement Scheme, but must meet the eligibility criteria) • An eligible person of Northern Ireland (they must also meet the criteria for the EU settlement scheme, even though they cannot apply) • An eligible British citizen who also has EU, EEA or Swiss citizenship, and who lived in the UK as an EU, EEA or Swiss citizen before getting British citizenship EU family permit until 31 December 2020 • with a ‘derivative right of residence’ – you’re the primary carer of a British, EU, EEA or Swiss child or British adult dependent, the primary carer’s child, or the child of an EU, EEA or Swiss citizen who previously worked in the UK • if you can make a ’Surinder Singh’ application after living in an EEA country or Switzerland with a British family member • with a ‘retained right of residence’ – you have the right to stay in the UK as the family member of an EU, EEA or Swiss citizen who has died, left the UK or is no longer your spouse or civil partner …”

EU family permit until 31 December 2020

[63]As is evident from the website, persons were told in plain terms that family members could apply as such for a family permit or under the EUSS. However, in order to apply under the EUSS, they must be a “close” family member. That was expressly contrasted with the “extended” family member, who could apply for an EEA family permit until 31 December 2020, but not under EUSS.[64]As we have seen from Article 10 of the Withdrawal Agreement, in order to fall within the scope of Part 2 (and, thus, Article 18) a person asserting to be an other family member must have “applied for facilitation of entry and residence before the end of the transition period”.[65]Although we have permitted the appellants to withdraw the concession made on their behalf in the First-tier Tribunal, it is plain from the above analysis that, notwithstanding the submissions now made on their behalf, the appellants simply do not fall within the terms of Appendix EU (FP). Those immigration rules give effect to the Withdrawal Agreement and the appellants are not family members within the scope of Article 18.1 of the Withdrawal Agreement.[66]Faced with this difficulty, the appellants contend that the application they made on 3 February 2020 under Appendix EU (FP) was an application “for facilitation of entry and residence” for the purposes of Article 10.3 of the Withdrawal Agreement. It is, however, plain that Article 10.3 encompasses those who apply for entry or residence as other family members. The expression “facilitation” in the context of the preceding phrase “persons falling under points (a) and (b) of Article 3(2) of Directive 2004/38/EC” puts that beyond doubt. The appellants’ applications were not made on the basis that the Secretary of State should exercise discretion in their favour, as part of her obligations as identified by the CJEU in Rahman. The application material makes it crystal clear what the basis of the applications was. The appellants applied on the basis that they were family members.[67]If the appellants had applied under the 2016 Regulations as extended family members, then the effect of the transitional provisions would have been such as to require the respondent to reach a decision, even after 31 December 2020, on whether their residence should be “facilitated”. In the event of a negative decision, a right of appeal would have lain to the First-tier Tribunal. As a result of a concession by the Secretary of State, now contained in immigration rules, a decision in the appellants’ favour would have led to the grant of leave, rather than the provision of EU (EEA) residence documentation (which is no longer available).[68]To that very limited extent, we agree with Mr De Mello and Mr Ahmed that the words “its national legislation thereafter” in Article 10.3 do not need to be confined to the 2016 Regulations. However, this does not assist the appellants because, to reiterate, they did not apply for facilitation of entry and residence.[69]In the alternative, the appellants contend that, notwithstanding they applied under EUSS rather than under the 2016 Regulations, the respondent ought to have treated their applications as being made under those Regulations.[70]Mr De Mello seeks to draw support from Article 18.1(e) of the Withdrawal Agreement, whereby the host State “shall ensure that any administrative procedures for applications are smooth, transparent and simple, and that any unnecessary administrative burdens are avoided”. Mr De Mello also relies upon Article 18.1(f), which requires application forms to be “short, simple, user-friendly and adapted to the context of this Agreement”.[71]The guidance on www.gov.uk, however, shows that the Secretary of State has been at pains to provide potential applicants with the relevant information, in a simple form, including highlighting the crucial distinction between “close family members” and “extended family members”. That is a distinction which, as we have seen from the Directive and the case law, is enshrined in EU law. It is not a novel consequence of the United Kingdom’s leaving the EU. It is, accordingly, not possible to invoke sub-paragraphs (e) and (f) of Article 18 as authority for the proposition that the respondent should have treated one kind of application as an entirely different kind of application.[72]Mr De Mello also invoked Article 18.1(r). This requires redress procedures to ensure that the decision refusing to grant the residence status “is not disproportionate”. It cannot, however, be disproportionate for the respondent and the Secretary of State, faced with the scale of EUSS applications, to devise and operate a system which draws attention to the two fundamentally different ways in which a family application should be made, and which then determines applications by reference to what an applicant is specifically asking to be given.[73]The upshot is that the appellants cannot show their rights under the Withdrawal Agreement were breached by the respondent’s decisions. The appellants cannot show that those decisions were not in accordance with Appendix EU (FP). Accordingly, the First-tier Tribunal could not allow their appeals by reference to regulation 8 of the 2020 Appeal Regulations.

Article 8 ECHR/Charter of Fundamental Rights/ duty in respect of children

[74]At the beginning of paragraph 21 of his decision, the First-tier Tribunal Judge addressed Article 8 of the ECHR. Having done so, he concluded that the respondent’s decisions were compatible with Article 8.[75]The Upper Tribunal is grateful for the further written submissions which it invited on this issue.[76]The first task is to decide whether the First-tier Tribunal has jurisdiction in an appeal governed by the 2020 Appeal Regulations to consider a “human rights” ground. This involves an analysis of regulation 9. Under regulation 9, the First-tier Tribunal must consider any matter that is raised in a statement made under section 120 of the 2002 Act, which constitutes a “specified ground of appeal”; that is to say, a ground of appeal of a kind listed in regulation 8 or section 84 of the 2002 Act.[77]The grounds contained in section 84 concern refusal of a protection claim, the refusal of a human rights claim and the revocation of protection status. The only permissible ground in respect of the refusal of the human rights claim is that the decision is unlawful under section 6 of the Human Rights Act 1998.[78]It is, therefore, possible for an appellant to raise a human rights ground, in particular Article 8 of the ECHR, in a section 120 notice, which must then be considered by the First-tier Tribunal pursuant to its duty under regulation 9(1) and determined under regulation 10.[79]Regulation 9(4) provides that the first-tier Tribunal has power to consider any matter which it thinks relevant to the substance of the decision. Here, however, the First-tier Tribunal can do so only with the consent of the Secretary of State, if the matter is a “new matter” as defined in regulation 9(6). This provides that the matter will be a “new matter” if it constitutes a ground of appeal of a kind listed in regulation 8 or section 84 and the Secretary of State has not previously considered the matter in the context of the decision appealed against under the Regulations or in the context of a section 120 statement from the appellant.[80]The “jurisdiction” issue under regulation 9(4) in the context of Article 8 ECHR was addressed by the Upper Tribunal in Celik (EU exit; marriage; human rights) [2022] UKUT 220 (IAC). In essence, the Upper Tribunal found that the First-tier Tribunal has jurisdiction under regulation 9(4) to consider a human rights ground on an appeal against refusal of an application under the EUSS, provided that, if it is a “new matter”, the Secretary of State consents. Unless the Secretary of State has previously considered the Article 8 ECHR issue in the context of the decision appealed against or in a section 120 statement, we agree with Ms Smyth that the Secretary of State’s consent will be necessary in order for the First-tier Tribunal to consider the Article 8 issue. In order to succeed in an application for entry clearance under Appendix EU(FP), an applicant must meet the specific requirements of those rules. Since neither Appendix EU nor Appendix EU(FP) is intended to, and does not, give effect to this country’s obligations under Article 8 ECHR, consideration of Article 8 forms no part of the decision-making process in relation to such an application. Regardless of the strength of any Article 8 claim, leave could not be granted under those provisions unless the requirements of the relevant rules were satisfied.[81]This is amply demonstrated in the context of the present appeals by the application materials, to which we have made reference. These do not refer to human rights matters. They are, in no sense, a human rights claim within the meaning of section 113(1) of the 2002 Act. The decisions refusing the appellants’ applications make no reference to human rights. The decisions can in no way be regarded as refusals of human rights claims within the meaning of section 82(1)(b) of that Act.[82]The appellants contend that the First-tier Tribunal Judge had a duty to consider their human rights and that this was not capable of being a “new matter” requiring the Secretary of State’s consent.[83]Mr De Mello submits that, where an appellant has made an application for residence pursuant to Article 18 of the Withdrawal Agreement, and the application contains a human rights claim which is refused, then the appellant may appeal on human rights grounds/grounds based on the EU Charter; and that this matter must be considered by the First-tier Tribunal.[84]The first point to make in considering this submission is that, as we have said, no such human rights claim was made in the present case. If the appellants’ applications and the respondent’s decisions in the present case are (as we suspect) typical, then the First-tier Tribunal is unlikely to see cases involving Mr De Mello’s factual matrix.[85]The appellants, however, advance a broader proposition. They contend that, if they do not satisfy the EUSS, then the First-tier Tribunal in an appeal under the 2020 Appeal Regulations “must go on to decide the merits of the appeal, on invitation, in accordance with Articles 7 and 24 of the Charter of Fundamental Rights of the EU and then if necessary go on to consider Article 8 ECHR and section 55”. If the view is taken that the situation is not covered by European Union law, then the First-tier Tribunal “must undertake that examination in the light of Article 8(1) of the ECHR”.[86]We find that the EU Charter has no bearing on these appeals. The EU Charter ceased to be part of the United Kingdom’s law on 31 December 2020: section 5(4) of the 2018 Act. The “saving” in section 5(5) merely concerns fundamental rights or principles which exist irrespective of the EU Charter. Since Article 7 of the EU Charter corresponds to Article 8 ECHR, the effect of section 5(5) is to put beyond doubt that Article 8 ECHR continues to apply after 31 December 2020.[87]Article 24 of the EU Charter concerns the rights of the child. Article 24.1 is irrelevant in the present context. Article 24.2, which requires a child’s best interests to be a primary consideration in all actions relating to children, broadly corresponds with section 55 of the Borders, Citizenship and Immigration Act 2009, insofar as the respondent is concerned. The appellants have, however, failed to explain how the respondent’s decisions under EUSS (FP) could conceivably have been different, merely because the appellants were children; still less how section 55 can be a material factor in an appeal brought under the 2020 Appeal Regulations (leaving aside the issue of human rights, discussed above).[88]In their further written submissions, Mr De Mello and Mr Ahmed submit that the EU Charter features in the recitals to the Withdrawal Agreement and in Article 2(a)(i) (the definition of “Union law”). The expression “Union law” is then referred to in articles 4, 6, 7 and 9. Since we are concerned with Part 2 (citizens’ rights) of the Withdrawal Agreement, it is only the reference in Article 9(c) to Union law that is potentially of relevance. Article 9(c) defines the “host State”, in respect of Union citizens and their family members, as meaning the United Kingdom, if the citizens/members exercised their rights of residence in the United Kingdom in accordance with Union law before the end of the transition period and continue to reside in this country thereafter.[89]That, however, provides no basis at all upon which to argue, as the appellants appear to do, that the EU Charter has a direct bearing on Articles 10/18, to the point where a First-tier Tribunal Judge is compelled to engage with the Charter in an appeal under the 2020 Appeal Regulations, irrespective of the restrictions on grounds and matters contained in regulations 8 and 9.[90]This leaves the submission that retained EU law is such as to require the respondent and the First-tier Tribunal to determine the Article 8 rights of the appellants in the context of an appeal under the 2020 Appeal Regulations. Mr De Mello and Mr Ahmed rely, in this regard, on Dereci. At paragraph 72, the CJEU held:
“72. … in the present case, if the referring court considers, in the light of the circumstances of the disputes in the main proceedings, that the situation of the applicants in the main proceedings is covered by EU law, it must examine whether the refusal of their right of residence undermines the right to respect for private and family life provided for in art.7 of the Charter. On the other hand, if it takes the view that that situation is not covered by EU law, it must undertake that examination in the light of art.8(1) of the ECHR.”
[91]We are in no doubt that Dereci does not have the effect for which the appellants contend, even if it somehow remains part of United Kingdom law for the purposes with which we are concerned. If the position were otherwise, Schedule 2 (appeals to the First-tier Tribunal) to the 2016 Regulations would have been framed so as to include, as a ground of appeal, that the decision under those Regulations was a violation of Article 8 of the ECHR. In fact, the judgment of the Court of Appeal in Amirteymour v SSHD [2017] EWCA Civ 353; [2017] Imm AR 1368 makes the appellants’ case untenable. There, the Court held that human rights could not constitute a ground of appeal under the 2006 Regulations (the predecessors of the 2016 Regulations), unless it had featured in a response to a section 120 notice (the “new matter” provisions not having come into being at that time).[92]The position, therefore, is that, unless there has been a section 120 response raising human rights, the First-tier Tribunal may entertain a submission that leave should be granted in order to avoid a breach of section 6 of the Human Rights Act 1998, only with the consent of the Secretary of State if this would involve consideration of a “new matter”.[93]Since the respondent’s decision making under Appendix EU (F P) is not concerned with human rights issues, the raising of a human rights claim will always be a “new matter” unless, for some reason, the Secretary of State has already considered it.[94]The scenario described in paragraph 92 above is precisely what happened at the hearing on 7 June 2021 of the appellants’ appeals. For the reasons he gave, the First-tier Tribunal Judge was entitled to conclude, on the evidence, that the decisions refusing entry clearance were “entirely compatible with respect for their family and private life to which the appellants are entitled by Article 8 of the ECHR”.

DECISION

[95]The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law. The appellants’ appeals are accordingly dismissed. Mr Justice Lane The Hon. Mr Justice Lane President of the Upper Tribunal Immigration and Asylum Chamber

Cited in 3 later judgments