The Secretary of State for the Home Department v Have Rexhaj
| Jurisdiction | England & Wales |
| Judge | Lord Justice Underhill,Popplewell LJ,Lewis LJ |
| Judgment Date | 11 July 2024 |
| Neutral Citation | [2024] EWCA Civ 784 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2023-001547 |
and
[2024] EWCA Civ 784
Lord Justice Underhill
(Vice-President of the Court of Appeal (Civil Division))
Lord Justice Popplewell
and
Lord Justice Lewis
Case No: CA-2023-001547
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Upper Tribunal Judge Stephen Smith
and Deputy Upper Tribunal Judge Skinner
Royal Courts of Justice
Strand, London, WC2A 2LL
Julia Smyth (instructed by the Treasury Solicitor) for the Appellant
Anthony Metzer KC, Sanaz Saifolahi and Nozima Rakhimjonova (instructed by Sterling Lawyers Ltd) for the Respondent
Sonali Naik KC, Bojana Asanovic and Eva Doerr (instructed by Herbert Smith Freehills LLP) for the Intervener
Hearing dates: 10 & 11 April 2024
Approved Judgment
This judgment was handed down remotely at 10.30am on 11 July 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
INTRODUCTION
This appeal concerns the relationship between the EU Settlement Scheme (“the EUSS”), which is contained in Appendix EU to the Immigration Rules (“Appendix EU”), and the provisions of the separate but related Appendix EU (Family Permit) (“Appendix EU (FP)”). The purpose of the EUSS is to give residence rights in the UK to EU, EEA and Swiss citizens (referred to together as “EEA citizens”) who had prior to the UK's withdrawal from the EU (and from its associated treaties with the EEA and Switzerland) been living in the UK, and in some circumstances also to their family members. The rights in question take the form of either limited or indefinite leave to remain (“LLR” or “ILR”) – otherwise known as “pre-settled” or “settled” status – but where it is not necessary to distinguish I will refer to them compendiously as “settlement”.
The issue before us concerns the provisions of the EUSS which govern an application by a non-EEA citizen living outside the UK (“the applicant”) for settlement rights here by virtue of their relationship with an EEA-citizen son or daughter, or son- or daughter-in-law, (“the sponsor”) in the UK, and specifically whether it was, at the material time, a requirement that the parent show that they are dependent on the child. In most cases an application for settlement cannot be made from outside the UK, so the applicant first requires leave to enter. That means that they have to follow a two-stage process, the essentials of which are as follows:
(1) They must first apply under Appendix EU (FP) for entry clearance in the form of an “EU Settlement Scheme Family Permit” (“a family permit”).
(2) Once they have entered the UK pursuant to the entry clearance, they can apply under Appendix EU for, depending on their particular circumstances, either ILR or LLR.
I set out the particular rules underpinning that process later in this judgment.
The applicant in this case is Mrs Have Rexhaj, an Albanian citizen now aged 60 and a widow, and the sponsor is her daughter-in-law, Ms Laura-Marinela Prednicea, who is married to her son Urim. Ms Prednicea is a Romanian national who has acquired settlement rights under the EUSS. Mrs Rexhaj followed the two-stage process outlined above. Specifically:
(1) On 21 June 2021 she applied to the Entry Clearance Officer in Tirana for a family permit, using the prescribed form and identifying Ms Prednicea as her sponsor. In both the form itself and the covering letter from her immigration advisers she said that she relied on Ms Prednicea for financial support.
(2) On 15 November 2021 that application was granted. A vignette was inserted in her passport headed “Entry Clearance”, the “type” being identified as “EU Settlement Scheme Family Permit to join L M Prednicea”. The permit was valid for a period of six months and allowed multiple entries to the UK during that period.
(3) On 25 December 2021 she arrived in the UK at Luton airport and the vignette was stamped to record her entry.
(4) On 2 January 2022 she made an online application for leave to remain under the EUSS “based on [my] relationship to someone eligible for the EU Settlement Scheme”: Ms Prednicea was identified as the relative in question. The application did not specify whether she was seeking LLR or ILR, but it is common ground that her only potential eligibility was for LLR.
She went back to Albania after 2 January 2022 and has not returned since.
On 12 April 2022 Mrs Rexhaj's application was refused by the Secretary of State. In short, the refusal was on the basis that she had failed to show that she was dependent on Ms Prednicea, which the Secretary of State believed was a requirement of the EUSS.
Mrs Rexhaj appealed to the First-tier Tribunal under regulation 8 of the Immigration (Citizens' Rights Appeals) (EU Exit) Regulations 2020 (“the 2020 Regulations”). Her primary case was that she was not, on the true construction of the relevant provisions of Appendix EU, required to show that she was dependent on Ms Prednicea (“the issue of law”); but she also contended that if there was such a requirement she had satisfied it (“the factual issue”). By a decision dated 12 October 2022 FTTJ Bennett found against her on both issues and dismissed her appeal.
Mrs Rexhaj appealed to the Upper Tribunal. As regards the issue of law, she contended that she was not subject to any dependency requirement. As regards the factual issue, she contended that the First-tier Tribunal's findings were procedurally unfair because no opportunity had been given for oral evidence. By a decision dated 24 April 2023 the Tribunal (UTJ Stephen Smith and DUTJ Skinner) allowed her appeal on the issue of law. It also set aside the FTTJ's findings of fact on the factual issue, on the basis that that was not a relevant inquiry given its conclusion on the legal issue. That meant that it did not have to decide whether the findings were otherwise challengeable, but at para. 23 of its decision it said that it “harboured grave doubts” over whether they were in fact open to the Tribunal as a matter of procedural fairness.
The Secretary of State appeals against the decision of the Upper Tribunal with the permission of Elisabeth Laing LJ granted on 30 October 2023. She 1 has been represented before us by Ms Julia Smyth of counsel. Mrs Rexhaj has been represented by Mr Anthony Metzer KC, leading Ms Sanaz Saifolahi and Ms Nozima Rakhimjonova. In the Upper Tribunal the Secretary of State was represented by a Senior Home Office Presenting Officer and Mrs Rexhaj by Ms Saifolahi.
On 6 March 2024, barely a month before the hearing of the appeal, the AIRE Centre applied for permission to intervene. By order dated 8 March Elisabeth Laing LJ gave it permission to do so, both in writing and by short oral submissions. It has been represented by Ms Sonali Naik KC, Ms Bojana Asanovic and Ms Eva Doerr. As will appear, the issues sought to be raised by the AIRE Centre are quite different from those
raised by the appeal. I will accordingly first address the latter and will return to the intervention at the end of the judgmentIn order to understand the issue on which the appeal depends it is necessary to identify the relevant UK legislation about leave to enter and entry clearance and to set out the relevant provisions of the two Appendices. I will also summarise the provisions of the Withdrawal Agreement between the EU and the UK which relate to the rights of persons in Mrs Rexhaj's position, though in truth they are no more than a background to the specific issue which we have to decide.
THE LEGISLATION
The Withdrawal Agreement
It is convenient to deal with the Withdrawal Agreement first, although its conclusion post-dates some of the domestic legislation with which we are concerned.
The Withdrawal Agreement was concluded on 17 October 2019. By section 7A of the European Union (Withdrawal) Act 2018, inserted by the European Union (Withdrawal Agreement) Act 2020 (“the 2020 Act”), the provisions of the Agreement relating to the settlement rights of EU citizens and their family members have direct effect in UK law.
The Agreement provided for a transition period, ending at 11 p.m. on 31 December 2020, under which EU law would continue to apply in the UK. Until that date the rights of non-EU citizen family members were governed by the relevant terms of Directive 2004/38/EC (generally known as the Citizens Rights Directive), implemented as a matter of domestic law by the Immigration (European Economic Area) Regulations 2016 (“the 2016 Regulations”): I will refer to that as the “pre-withdrawal regime”.
Chapter 1 of Title II of Part 2 of the Withdrawal Agreement (which comprises articles 13–23) requires the parties, post-withdrawal, to confer rights of residence, including in some circumstances rights of permanent residence, on the categories of persons identified in (so far as relevant for our purposes) article 10.1.
Article 10.1 comprises six categories (“points” (a)-(f)). So far as the rights of EU citizens in the UK are concerned, the primary beneficiaries are identified at point (a) as “Union citizens who exercised their rights to reside in the United Kingdom in accordance with Union law before the end of the transition period and continued to reside there thereafter”.
“Family members” of such EU citizens are covered by point (e) under article 10.1, provided they satisfy one of conditions (i)-(iii). The relevant condition for our purposes is (ii), namely that:
“they were directly related to a person referred to in points (a) to (d) and resided outside the host State before the end of the transition period, provided that they fulfil the conditions set out in point (2) of Article 2 of Directive 2004/38/EC at the time they seek residence...
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