Batool and Ors (Other Family Members: Eu Exit)
| Jurisdiction | UK Non-devolved |
| Judge | Lane J,Smith UTJ |
| Judgment Date | 19 July 2022 |
| Neutral Citation | [2022] UKUT 219 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2022] UKUT 219 (IAC)
Lane J (President) and Smith UTJ
UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
European Union law — family members — other family members — EU exit — EU Settlement Scheme — no application for facilitation of entry and residence — Articles 10(3) & 18 of the Withdrawal Agreement — human rights — Article 8 of the ECHR — private and family life
The Claimants were citizens of Pakistan. The first and second Claimants were sister and brother, aged 17 and 10. Their father was CGS. The third and fourth Claimants were brothers, aged 13 and 10. Their father was MAC who was the brother of CGS. In February 2020, the Claimants applied under the EU Settlement Scheme (‘EUSS’) by reference to Appendix EU (Family Permit) to the Immigration Rules HC 395 (as amended) for family permits to live in the United Kingdom with their paternal uncle (the brother of CGS and MAC) and aunt by marriage who was an EEA national. The EUSS had been introduced in March 2019 pursuant to Article 18 of the EU Withdrawal Agreement. The United Kingdom left the EU at the end of the withdrawal period on 31 December 2020. The Claimants could have applied as ‘extended family members’ under the Immigration (European Economic Area) Regulations 2016 (‘the 2016 Regulations’) prior to the end of the withdrawal period but had not done so. The Entry Clearance Officer (‘ECO’) refused the applications on the grounds that none of the Claimants met the eligibility requirements for an EUSS family permit as they were not family members of their EEA national aunt. The Claimants appealed against that decision, pursuant to regulation 3 of the Immigration (Citizens' Rights Appeals) (EU Exit) Regulations 2020 (‘the 2020 Appeals Regulations’). The First-tier Tribunal (‘FtT’) dismissed the appeal holding that the refusal of their applications for family permits under the EUSS was compatible with their right to respect for their family and private life under Article 8 ECHR.
Before the Upper Tribunal, the Claimants submitted that the application they had made under Appendix EU (Family Permit) was an application within Article 10(3) of the Withdrawal Agreement, as they had applied for ‘facilitation of entry and residence’ before the end of the transition period. Alternatively, they argued that the ECO ought to have treated their applications as being made under the 2016 Regulations. They further submitted that, if they did not satisfy the EUSS, then the FtT in an appeal under the 2020 Appeal Regulations had to 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 European Union (‘the EU Charter’) and then, if necessary, go on to consider Article 8 ECHR. If the view was taken that the situation was not covered by EU law, then the FtT had to undertake that examination in the light of Article 8 ECHR.
Held, dismissing the appeals:
(1) 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. It was evident from publicly available guidance on the government website that family members could apply as such for a family permit or under the EUSS. To apply under the EUSS, however, 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 the EUSS. To fall within the scope of Article 18 of the Withdrawal Agreement 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’. The Claimants simply did not fall within the terms of Appendix EU (Family Permit). Those immigration rules gave effect to the Withdrawal Agreement and the Claimants were not family members within the scope of Article 18(1) of the Withdrawal Agreement (paras 61 – 65).
(2) Article 10(3) of the Withdrawal Agreement encompassed those who applied for entry or residence as extended or other family members. The Claimants had, however, applied on the basis that they were ‘family members’. If they had applied under the 2016 Regulations as extended family members, the effect of the transitional provisions would have been such as to require the ECO to reach a decision, even after the end of the withdrawal period, on whether their residence should be ‘facilitated’. In the event of a negative decision, there would have been a right of appeal to the FtT. As a result of a concession now contained in the Immigration Rules, a decision in the Claimants' favour would have led to the grant of leave, rather than the provision of EU (EEA) residence documentation, which was no longer available. Although the words ‘its national legislation thereafter’ in Article 10(3) did not need to be confined to the 2016 Regulations, that did not assist the Claimants because they did not apply for facilitation of entry and residence (paras 66 – 68).
(3) In the alternative, the Claimants submitted that, notwithstanding they applied under the EUSS, the ECO ought to have treated their applications as being made under the 2016 Regulations. The guidance on the government website had provided potential applicants with the relevant information, in a simple form, including highlighting the crucial distinction between ‘close family members’ under the EUSS and ‘extended family members’ under the 2016 Regulations. That distinction was enshrined in EU law. It was not a novel consequence of the United Kingdom leaving the EU. It was, accordingly, not possible to invoke Article 18 of the Withdrawal Agreement as authority for the proposition that the ECO should have treated one kind of application as an entirely different kind of application. The Claimants could not show that their rights under the Withdrawal Agreement were breached by the ECO's decisions, or that those decisions were not in accordance with Appendix EU (Family Permit). Accordingly, the FtT could not have allowed their appeals by reference to regulation 8 of the 2020 Appeal Regulations (paras 69 – 73).
(4) The EU Charter had no bearing on the instant appeals. The EU Charter ceased to be part of the United Kingdom's law on 31 December 2020 pursuant to section 5(4) of the European Union (Withdrawal) Act 2018. The ‘saving’ in section 5(5) of that Act merely concerned fundamental rights or principles which existed irrespective of the EU Charter. Since Article 7 of the EU Charter corresponded to Article 8 ECHR, the effect of section 5(5) was to put beyond doubt that Article 8 ECHR continued to apply after 31 December 2020. Article 24(2) of the EU Charter required a child's best interests to be a primary consideration in all actions relating to children and broadly corresponded with section 55 of the Borders, Citizenship and Immigration Act 2009. The Claimants had, however, failed to explain how the ECO's decisions under the EUSS could conceivably have been different, merely because the Claimants were children; still less how section 55 could be a material factor in an appeal brought under the 2020 Appeal Regulations (paras 86 – 87).
(5) Unless there had been a response raising the issue of human rights in response to a notice under section 120 of the Nationality, Immigration and Asylum Act 2002 to state additional grounds for the application, the FtT could only entertain a submission that leave should be granted in order to avoid a breach of section 6 of the Human Rights Act 1998 with the consent of the ECO if that would involve consideration of a ‘new matter’: Amirteymour v Secretary of State for the Home Department[2017] EWCA Civ 353 applied. Since the ECO's decision-making under Appendix EU (Family Permit) was not concerned with human rights issues, the raising of a human rights claim would always be a ‘new matter’ unless the ECO had already considered it. In the instant case the ECO had consented to the new matter being considered and the FtT had been entitled to conclude, on the evidence, that the decisions refusing entry clearance were compatible with Article 8 ECHR (paras 91 – 94).
AM (Iran) v Secretary of State for the Home Department [2018] EWCA Civ 2706
Amirteymour v Secretary of State for the Home Department [2017] EWCA Civ 353; [2017] Imm AR 1368; [2017] INLR 691
Baihinga (r.22; human rights appeal: requirements) [2018] UKUT 90 (IAC); [2018] Imm AR 930; [2018] INLR 446
Chowdhury v Secretary of State for the Home Department [2021] EWCA Civ 1220; [2021] 1 WLR 5544; [2021] Imm AR 1748
Dereci and Others v Bundesministerium fur Inneres (Case C-256/11); [2012] All ER (EC) 373; [2012] 1 CMLR 45; [2012] Imm AR 230; [2012] INLR 151
Macastena v Secretary of State for the Home Department [2018] EWCA Civ 1558; [2019] 1 WLR 365; [2019] Imm AR 28; [2019] INLR 374
Secretary of State for the Home Department v Aibangbee [2019] EWCA Civ 339; [2019] 1 WLR 4747; [2019] Imm AR 979
Secretary of State for the Home Department v Rahman and Others (Case C-83/11); [2013] QB 249; [2013] 2 WLR 230; [2012] 3 CMLR 55; [2013] Imm AR 73; [2013] INLR 334
Soares v Secretary of State for the Home Department [2013] EWCA Civ 575; [2013] Imm AR 1096
Agreement on the withdrawal of the United Kingdom and Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (‘the Withdrawal Agreement’), Articles 2, 4, 6, 7, 9, 10, 18, 21 & 126 Borders, Citizenship and Immigration Act 2009, section 55
Charter of the Fundamental Rights of the European Union, Articles 7 & 24
Civil Procedure Rules, rule 1.1
Directive 2004/38/EC (‘the Citizens Directive’), Articles 2 & 3(2); Recital 6
European Convention on Human Rights, Article 8
European Union (Withdrawal) Act 2018, sections 1, 1 A, 2, 4, 5, 7A & 20
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