Bright Kofi Nkrumah v The Secretary of State for the Home Department

A residence card stamped in an applicant’s passport following a duly made application takes effect when it is communicated, unless it has first been cancelled. An administrative mistake in granting it does not make the card a nullity.

The Secretary of State cannot lawfully refuse an application that has already been granted without first cancelling or revoking the card. Once issued, the card remains valid authority to remain until expiry, lapse through prolonged absence, or revocation under the Immigration (EEA) Regulations 2006. Revocation remains available where the holder was not entitled to the card.

The appellant, a Ghanaian national, applied in 2008 for an EEA residence card as the extended family member of his Netherlands-national sister. A five-year residence card was stamped in his passport in October 2009. When the passport was sent to him two months later, it was accompanied by a letter refusing the application and giving a right of appeal.

An Immigration Judge dismissed his appeal after finding that he had not established entitlement to a card. The appellant appealed to the Upper Tribunal. The central issue was whether the card, which had not been cancelled or revoked before it was sent to him, was valid despite the accompanying refusal letter.

1. Appeal allowed. The Immigration Judge made a material error of law by failing to recognise that a valid residence card had been issued and communicated to the appellant. The Tribunal set aside the dismissal and remade the decision.

2. The unequivocal stamping of the card in the passport was a grant. By analogy with Rafiq v SSHD [1998] INLR 349, it took effect upon communication to the appellant. The later refusal letter did not render the prior grant a nullity. There was no allegation that the card had been obtained by misrepresentation.

3. The Secretary of State could have annulled an erroneous grant before communication by cancelling the document. That did not occur. It was therefore unlawful to refuse an application which had already been granted without first cancelling or revoking the card.

4. Once issued, the card remained valid authority to remain unless it expired, lapsed through prolonged absence, or was revoked under regulation 20 of the Immigration (EEA) Regulations 2006. The Secretary of State remained free to revoke it upon a demonstrated lack of entitlement.

5. The Tribunal added that, for an other family member to qualify for the favourable exercise of discretion under regulation 8, pre-entry dependency was necessary. Dependency meant financial support needed to meet essential living requirements. If pre-entry dependency were established, continued dependency or continued membership of the EEA national’s household could support a grant.

6. The Tribunal declared that the appellant held a residence card valid until October 2014 and set aside the refusal of his application.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appeal, set aside the Immigration Judge’s decision, and remade it by declaring that the appellant held a valid residence card and setting aside the refusal.
• Immigration Judge: Dismissed the appeal after finding that the appellant had not established entitlement to a residence card.