Tanjina Siddiqa v Entry Clearance Officer
| Jurisdiction | England & Wales |
| Judge | Lord Justice Dingemans,Lady Justice Elisabeth Laing,Lord Justice Baker |
| Judgment Date | 14 March 2024 |
| Neutral Citation | [2024] EWCA Civ 248 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2023-001050 |
and
and
[2024] EWCA Civ 248
Lord Justice Baker
Lord Justice Dingemans
and
Lady Justice Elisabeth Laing
Case No: CA-2023-001050
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(Immigration and Asylum Chamber)
Hill J and UTJ Kebede
Royal Courts of Justice
Strand, London, WC2A 2LL
Michael Biggs and Michael West (instructed by Lexwin Solicitors) for the Appellant
Julia Smyth, Natasha Jackson and Paul Erdunast (instructed by the Government Legal Department) for the Respondent
Galina Ward KC and Charles Bishop (instructed by Browne Jacobson LLP) for the Intervener
Simon Cox and Parminder Saini (instructed by Herbert Smith Freehills LLP) for the Joint Interveners
Hearing dates: 8 & 9 February 2024
Approved Judgment
This judgment was handed down remotely at 14.00 hrs on 14.03.24 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
This is the hearing of an appeal which raises issues about whether the decision by the Entry Clearance Officer (ECO) dated 25 January 2021 meant that the ECO and Secretary of State for the Home Department (the Secretary of State) have infringed the Agreement on the Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (the Withdrawal Agreement), and whether the First-tier Tribunal (Immigration and Asylum Chamber) (FTT) should have treated the appeal in this case as being under the Immigration (European Economic Area) Regulations 2016 (the 2016 Regulations).
The Withdrawal Agreement was given domestic legal effect by the European Union (Withdrawal Agreement) Act 2020, which amended the European Union (Withdrawal) Act 2018. The UK left the EU at 11pm on 31 January 2020. The transition period for which the Withdrawal Agreement provided, ended at 11pm on 31 December 2020.
The appellant, Tanjina Siddiqa, (Ms Siddiqa), who was born on 20 February 1994 and is aged 30 years, is a national of Bangladesh. Ms Siddiqa's brother, Md Moin Uddin (Mr Uddin) is a national of Bangladesh, and he became a national of Portugal and therefore an EU citizen. Mr Uddin moved to the UK and was granted leave to remain in the UK on 5 February 2020 under Part 1 of Appendix EU of the Immigration Rules, and Ms Siddiqa's and Mr Uddin's mother, who had joined Mr Uddin in Portugal, was also granted leave to enter the UK.
On 7 December 2020, some 24 days before the end of the transition period, an online application was made on behalf of Ms Siddiqa under the Appendix EU (Family Permit) of the Immigration Rules for an EU Settlement Scheme (EUSS) family permit to enter the UK. It was common ground that Ms Siddiqa did not qualify under the “EUSS family permit scheme” as at 7 December 2020, and her application was refused by the ECO. It was also common ground that Ms Siddiqa might have qualified under the 2016 Regulations for entry clearance under an “EEA family permit scheme”. This would have depended on Ms Siddiqa showing that when she was in Bangladesh, she was dependent on her brother.
The effect of Ms Siddiqa's later entry to the UK
On 8 June 2023 Ms Siddiqa was in fact granted leave to enter the UK as a skilled worker up until 15 July 2026. As a consequence, Ms Siddiqa entered the UK on about 15 June 2023. The Secretary of State contended in writing that this meant that Ms Siddiqa's appeal is academic. Ms Siddiqa contended that if she had obtained status under the 2016 Regulations, she could have then obtained a different and better status than her status under the skilled worker visa route, which required her to remain in employment. Whether Ms Siddiqa would have obtained status under the 2016 Regulations depended on whether Ms Siddiqa was a dependant of Mr Uddin. The fact that Ms Siddiqa secured entry as a skilled worker some 2 and a half years later suggests that the Secretary of State might have made inquiries about whether Ms Siddiqa was such a dependant, but Ms Siddiqa's case is that she was a student being funded by her brother.
By the end of the oral submissions it was common ground that the Court should deal with Ms Siddiqa's appeal on the merits. There was some reference to other appeals against decisions of the Secretary of State but none of the parties, or the interveners, were able to assist with how many appeals there were or whether any other appeals before the Tribunals raised the same issues as in this appeal. It seems likely that, if there are any such appeals, it will be a small number.
I agree that the Court should determine Ms Siddiqa's appeal. This is because if Ms Siddiqa is successful on her appeal then, subject to further decisions by the Secretary of State, it might have some beneficial effect on her status in the UK.
Relevant schemes
In broad terms the EUSS family permit scheme, which was introduced on 30 March 2019, covered “direct family members” (as well as “extended family members who had already been granted residence rights”). The EUSS family permit scheme was provided for by Appendix EU (Family Permit) of the Immigration Rules.
The EEA family permit scheme covered “extended family members” as well as direct family members. The difference between direct family members and extended family members was itself derived from Directive 2004/38 EC (known as the “Citizens' Rights Directive”) which identified the two different categories of family members. Applications by extended family members such as Ms Siddiqa could not be made under this scheme after 31 December 2020.
As part of the orderly withdrawal of the UK from the EU provided for by the Withdrawal Agreement, in cases where an extended family member made an application under the EEA family permit scheme before 31 December 2020, it was for the UK to determine that application and, if it was granted, to facilitate the entry of that extended family member.
The Citizens' Rights Directive
As noted above the Citizens' Rights Directive created two different categories of family members. Article 2 of the Citizens' Rights Directive covered direct family members and article 3 covered extended family members.
Article 2 of the Citizens' Rights Directive covered family members who are spouses; registered partners; direct descendants who are either under 21 or who are dependants; and dependent direct relatives. These were referred to as direct family members. They were given the right to enter the UK, to remain for three months, and to reside for a longer period if relevant conditions were satisfied, see articles 6 and 7.
Article 3 of the Citizens' Rights Directive covered beneficiaries being other family members who were not covered by article 2 including dependants or members of the household of the Union citizen. These were referred to as extended family members. Article 3(2) provided:
“Without prejudice to any right to 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 under 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.”
The meaning of “facilitate” within article 3 of the Citizen's Rights Directive was considered by the Court of Justice of the European Union (CJEU) in Rahman v Secretary of State for the Home Department Case C-83/11 [2013] QB 249. Member states were given a wide discretion as to how to implement the terms of article 3, so long as this amounted to facilitation and there existed a judicial remedy to determine whether the criteria which the state had adopted were properly applied, see paragraphs 25 and 26 of Rahman. In Banger v Secretary of State for the Home Department (Case C-89/17) [2019] 1 WLR 845 the CJEU confirmed that under the Citizens' Rights Directive, member states were under an obligation to confer a certain advantage on applications submitted by the third-country nationals envisaged in that article, compared with applications for entry and residence by other nationals of third countries. A decision by a member state to refuse a residence authorisation to a third-country national partner in such circumstances had to be founded on an extensive examination of the applicant's personal circumstances and be justified by reasons, see paragraphs 37 to 41.
The extent of the judicial remedies available under the Citizens' Rights Directive were considered by the CJEU in Chenchooliah v Minister for Justice and Equality Case C-94/18; [2020] 1 WLR 1801.
In Celik v Secretary of State for the Home Department [2023] EWCA Civ 921; [2023] Imm AR 5 ( Celik), Lewis LJ summarised the effect of article 3(2) of the Citizens' Rights Directive in paragraph 13. Lewis LJ identified that article 3(2) conferred a certain advantage on applications made by a person who had a relationship with Union citizens and that “any right to reside was granted by the member state in accordance with its national legislation …”. The criteria used had to be consistent with the normal...
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