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On 14 March 2024, the Court of Appeal refused the appeal in Siddiqa v Entry Clearance Officer [2024] EWCA Civ 248 which concerned the correct scope and interpretation of the agreement governing the withdrawal of the UK from the EU (“the Withdrawal Agreement”).
The Appellant is the sister of an EEA citizen. Prior to Brexit, dependant relatives of EEA citizens could come to the UK by obtaining an EEA family permit issued under the Immigration (European Economic Area) Regulations 2016 (“the 2016 Regulations”). The UK put in place arrangements for extended family members to be able to stay in the UK after Brexit if they held or had made, prior to Brexit, an ultimately successful application for an EEA family permit.
Prior to Brexit, the Appellant did not apply for an EEA family permit but instead applied for a family permit to travel to the UK under the EUSS Family Permit scheme, which was a different scheme set up for direct family members. Her application was therefore refused because she did not satisfy the relevant eligibility requirements. The Appellant contended on appeal that the Respondent was required to treat her application as an application under the 2016 Regulations. Her appeal was dismissed by the First-tier Tribunal (“FTT”) and the Upper Tribunal (“UT”).
The Appellant appealed to the Court of Appeal on three grounds: (1) whether the UT should have found that the First-tier Tribunal FTT was wrong to hold that she had not appealed under the 2016 Regulations; (2) whether the UT erred in its interpretation and application of article 18(1)(o) of the Withdrawal Agreement, which provides that the State should allow applicants the opportunity to correct deficiencies, errors and omissions in applications under the EUSS; and (3) whether the UT erred in its interpretation and application of article 18(1)(r) of the Withdrawal Agreement, which relates to access to judicial redress, and the procedural safeguards in article 21.
The Independent Monitoring Authority (“IMA”, which is the statutory body required by the Withdrawal Agreement to monitor and promote the effective and adequate implementation of the citizens’ rights provisions of the Withdrawal Agreement) the AIRE Centre and Here for Good intervened in the appeal. The Interveners submitted that a similar result to that contended for by the Appellants might be obtained through the provisions of article 10(3) and article 10(5) of the Withdrawal Agreement. This turned on whether or not the Appellant had made an application for “facilitation of entry and residence”.
As to issue 1, the Court of Appeal determined that the Entry Clearance Officer had been entitled not to treat the Appellant’s EUSS application as an application under the 2016 Regulations. A strict application of the rules is permissible, and applicants can be expected to make the proper application. While an application purportedly under the EUSS could be treated as an application under the 2016 Regulations where it is such an application as a matter of fact, that is a question of fact to be decided at first instance. The FTT and UT here had found that the Appellant had made a EUSS application (and not an application under the 2016 Regs), and the Court of Appeal found no error in that finding of fact.
As to issues 2 and 3, the court accepted the Entry Clearance Officer’s submission that the provisions of Article 18 of the Withdrawal Agreement, when properly interpreted, apply to extended family members whose entry had been facilitated under the scheme in the 2016 Regulations. As the Appellant had not been facilitated and had not applied for facilitation, Articles 18(1)(o) and (r) did not assist her.
The Court of Appeal did not accept the Interveners’ submission that Articles 10(3) and 10(5) were infringed by the ECO’s decision. The Court held that, further to its reasoning above, the Appellant had not made an application for facilitation. The ‘extensive examination’ of her application that she was permitted under Article 10(5) was undertaken by the ECO in order to determine (correctly) she did not meet the eligibility requirements under the EUSS. This decision addresses the issue left open by the Court of Appeal in Celik v Secretary of State for the Home Department and (1) The Aire Centre (2) Here for Good (3) Independent Monitoring Authority [2023] EWCA Civ 921.
The judgment may be found here.
Julia Smyth, leading Natasha Jackson, represented the Entry Clearance Officer, instructed by the Government Legal Department.
Galina Ward KC and Charles Bishop represented the Independent Monitoring Authority, instructed by Browne Jacobson LLP.
