Court of Appeal clarifies limits of EUSS eligibility following border entry

The Court of Appeal has handed down judgment in Randhawa v Secretary of State for the Home Department ([2026] EWCA Civ 1008), confirming that a non-EEA national family member of an EU citizen applying to the EU Settlement Scheme cannot rely on having been allowed to pass through UK border control as evidence that he was eligible for such status.

The appellant – a Pakistan national – sought to argue that he was someone who benefitted from the protections of the EU-UK Withdrawal Agreement and should be granted status by the UK under the EU Settlement Scheme (‘EUSS’) on the basis that he had been allowed by UK officials to pass through border controls at Manchester airport in December 2019 with his Italian national brother, with whom he claimed he had subsequently continued to live and on whom he claimed to be dependent. When passing through border control, Mr Randhawa had presented an Italian residence card which showed that the Italian national authorities had granted him status there.

In challenging the Secretary of State’s refusal of his EUSS application, Mr Randhawa argued that the events in December 2019 meant he was in the same position as the appellants in the recent Court of Appeal case of Vasa & Hasanaj v Secretary of State for the Home Department [2025] 1 WLR 39. In that case, two non-EU nationals were allowed to enter the UK alongside EU national family members by UK border officials who stamped their passports to say that leave to enter had been granted to them under the Immigration (European Economic Area) Regulations 2016 (the ‘2016 Regulations’), the legislation that applied to rights of entry and residence of EU nationals and their family members prior to the UK’s departure from the EU. Being allowed to enter the UK under the 2016 Regulations prior to the end of the transition period is a mandatory criterion for non-EEA national family members of EU citizens to fall within the scope of the Withdrawal Agreement (Article 10(2)) and be entitled to EUSS status (Article 18).

Mr Randhawa argued that having been allowed to pass through UK border controls meant his entry had also been facilitated by the UK under the 2016 Regulations, even though there was no record that this was the decision border officials had made.

The Court of Appeal (Lewis, Whipple and Jeremy Baker LJ) rejected that argument on the basis of a key distinguishing feature: the appellants in Vasa had a physical document which – although it was not a residence card issued by the UK under the 2016 Regulations (the way in which entry and residence for those in Mr Randhawa’s cohort should ordinarily have been facilitated by the UK prior to its departure from the UK) – recorded that they had been allowed to enter the UK under the 2016 Regulations, even if that had been done by mistake. Mr Randhawa, by contrast, had no such document. The reasonable inference was that the UK border official had mistakenly thought that Mr Randhawa had a legal right of entry to the UK under EU law on the basis of his Italian residence card.

The Court was satisfied that this outcome resulted in no injustice to Mr Randhawa because he had been told on three occasions by the Secretary of State that she did not consider he met the criteria for EUSS status and that he needed to apply for a 2016 Regulations residence card. He had failed to do so. The fact that he could no longer make such an application was not the faut of the Secretary of State.

This decision clarifies the limits of the approach taken by the Court in Vasa, illustrating that in order for the Court to decide that residence had been facilitated under the 2016 Regulations there must be evidence to that effect.

Julia Smyth KC and Katharine Elliot (who also appeared at the permission stage) represented the successful Secretary of State.