Ullah, R (On the Application Of) v The Secretary of State for the Home Department

For an application by a non-EEA extended family member under regulation 18(4) of the Immigration (European Economic Area) Regulations 2016, the requirement that the application be accompanied or joined by a valid passport refers to the applicant’s own passport. The sponsoring EEA national’s passport does not satisfy that condition.

The Secretary of State may accept alternative evidence under regulation 42 where the applicant cannot obtain or produce the required document because of circumstances beyond the applicant’s control. A bare assertion of difficulty, without supporting evidence, may lawfully be rejected.

The claimant, a Pakistani national, sought judicial review of the Secretary of State’s refusal of his application for a residence card as the unmarried partner of a Lithuanian EEA national. His application included his partner’s passport and his own Pakistani identity card, but not his passport.

The application had been made before the Immigration (European Economic Area) Regulations 2016 came into force and was determined afterwards. The issues were whether regulation 18(4)(a) required the applicant’s own passport, whether the Secretary of State had lawfully exercised the discretion to accept alternative evidence under regulation 42, and whether a reference to the CJEU was necessary.

Application dismissed. The Secretary of State’s decision was lawful.

1. The absence of an express reference to the applicable statutory instrument did not invalidate the decision. The decision letter made the legal premise and reasons for refusal sufficiently clear. It also showed that the 2016 Regulations, rather than the 2006 Regulations, had been applied.
2. Regulation 18(4)(a) required the application of a non-EEA extended family member to be accompanied or joined by the applicant’s own valid passport. The sponsoring EEA national’s passport did not satisfy the condition. This construction followed from the ordinary inference that an unspecified passport requirement concerns the applicant; the treatment of passports elsewhere in the Regulations; the distinction between documentary requirements for EEA and non-EEA nationals; and the structure of regulation 18.
3. Regulation 21(5), although inapplicable because of the transitional provisions, supported that construction. It expressly dealt with proof of the sponsoring EEA national’s identity and nationality, and permitted either a national identity card or passport.
4. The Secretary of State lawfully declined to accept the claimant’s Pakistani identity card under regulation 42. The claimant supplied no evidence explaining what steps he had taken to obtain a passport or why the difficulty was beyond his control. The solicitors’ bare assertion was insufficient.
5. The guidance notes and application form were not misleading because they were multi-purpose documents. A national identity card was identified as sufficient for an EEA national, not for a non-EEA applicant in the claimant’s position. A CJEU reference was unnecessary because the meaning of regulation 18(4) was clear on ordinary domestic principles of construction.

This was a first-instance judicial review. The claim was amended after the challenged decision, and permission to apply for judicial review was later granted on the limited ground of challenging the refusal of the residence-card application.