Lirim Geci v The Secretary of State for the Home Department

Pending appeals under the preserved EEA provisions are determined by whether the decision breaches rights under the EU Treaties as they applied in the United Kingdom before 31 December 2020. Directive 2004/38/EC requires a qualifying non-national family member to be issued a residence card where the documentary requirements are met. The card is administrative evidence of an existing right of residence. Although Member States may restrict or remove a person on public policy, public security or public health grounds, those powers do not permit refusal of the card without a decision restricting the underlying right of residence.

The appellant challenged the refusal to issue him with a residence card under regulations 24 and 27 of the Immigration (European Economic Area) Regulations 2016. The First-tier Tribunal dismissed his appeal on 6 February 2020. Its decision was set aside for error of law because it had not properly addressed the applicable EU ground of appeal or whether the Directive permitted refusal of a residence card.

The appeal was remade in the Upper Tribunal after the EEA Regulations had been revoked, with relevant provisions preserved for pending appeals. The appellant’s marriage to an Italian national exercising Treaty rights, his documentary compliance and his criminal and immigration history were not materially disputed. The central issue was whether refusal of the card, without restricting or removing his residence rights, was lawful.

1. Applicable transitional law. The EEA Regulations 2016 were revoked on 31 December 2020, but relevant provisions were preserved by the EEA Transitional Regulations for pending appeals. The amended appeal ground was, in substance, whether the decision breached the appellant’s rights under the EU Treaties as they applied in the United Kingdom before that date.
2. Residence card. Articles 9 and 10 of Directive 2004/38/EC require a qualifying non-national family member of a Union citizen to be issued with a residence card, subject to the required documents. The Directive uses mandatory language and imposes strict time limits. Issuing the card is an administrative matter confirming an existing right of residence.
3. Public policy powers. Article 27 permits restrictions on free movement and removal on public policy, public security or public health grounds, subject to the Directive’s procedural and proportionality safeguards. It does not authorise refusal to issue a residence card merely because the Secretary of State considers that the person could properly be removed. Refusal of the card is not itself a restriction of the right of free movement, even though it may make exercise of that right practically difficult.
4. The Secretary of State retained power under the EEA Regulations to refuse a card on the specified grounds, but the relevant question was whether that course was permitted by the EU Treaties and the Directive. It was not. The respondent had accepted the appellant’s underlying residence right and had neither restricted it nor made a removal decision. Any such restriction or removal would also require a proportionate decision.
5. The First-tier Tribunal’s decision involved an error of law and was set aside. The Upper Tribunal remade the decision by allowing the appeal on EU grounds.

• First-tier Tribunal: The appellant’s appeal against refusal of a residence card was dismissed in a decision promulgated on 6 February 2020.
• Upper Tribunal (Immigration and Asylum Chamber): The First-tier Tribunal decision was set aside for error of law. The appeal was remade and allowed on EU grounds.