Ghulam Batool & Ors v Entry Clearance Officer

An extended or other family member has no automatic right of entry or residence. A person whose entry and residence had not been facilitated before the end of the transition period, and who had not applied for facilitation as an extended family member by that time, falls outside the relevant protection of the Withdrawal Agreement and cannot succeed under the EU Settlement Scheme rules.

An application made under Appendix EU (Family Permit) as a close family member is not an application for discretionary facilitation as an extended family member. The Secretary of State is not required to treat it as a different application.

In an appeal under the 2020 Appeals Regulations, an Article 8 claim is ordinarily a new matter unless previously considered by the Secretary of State, and requires consent. The EU Charter has no independent bearing after IP completion day.

The appellants were children living in Pakistan. They applied in February 2020 for EU Settlement Scheme family permits to join relatives connected to a Romanian national. The Entry Clearance Officer refused the applications because the appellants were not close family members within Appendix EU (Family Permit).

The First-tier Tribunal dismissed their appeals. It found that refusal did not interfere with Article 8 family life with the appellants’ uncle and aunt. Although the appellants’ representative had conceded that the refusals accorded with the Withdrawal Agreement and the Immigration Rules, the Upper Tribunal permitted withdrawal of that concession because the issues had wider significance.

The central questions were whether the appellants were protected as other or extended family members under Article 10(3) of the Withdrawal Agreement, whether their EUSS applications had to be treated as applications for facilitation under the 2016 Regulations, and whether Article 8 or the EU Charter could found the appeals.

1. Appeals dismissed. The First-tier Tribunal made no error of law.

2. The Tribunal permitted withdrawal of the concession, applying the interests-of-justice approach in AM (Iran) v SSHD [2018] EWCA Civ 2706. The Withdrawal Agreement and EUSS issues had wider ramifications and had been fully addressed.

3. Article 3(2) of Directive 2004/38 distinguishes other family members from family members with automatic rights. Other family members may receive facilitation of entry and residence, following an extensive examination, but have no automatic right. Under Article 10(2) and (3) of the Withdrawal Agreement, this category is protected only where residence had already been facilitated, or where an application for facilitation had been made before 23:00 GMT on 31 December 2020.

4. The appellants applied under Appendix EU (Family Permit) as close family members. They did not apply under the 2016 Regulations for discretionary facilitation as extended family members. Their application could not be recast as an entirely different application. They therefore had no right under the Withdrawal Agreement and did not meet FP6(1) of Appendix EU (Family Permit).

5. An Article 8 ground can be considered in a 2020 Appeals Regulations appeal if raised in a section 120 statement, or otherwise as a relevant matter with the Secretary of State’s consent where it is a new matter. An EUSS application and its refusal do not ordinarily decide a human-rights claim. Accordingly, an Article 8 claim is a new matter unless the Secretary of State has already considered it. The EU Charter ceased to be domestic law after IP completion day; its corresponding Article 8 protection did not enlarge the statutory appeal jurisdiction.

6. On the evidence, the First-tier Tribunal was entitled to find no Article 8 family life between the appellants and their uncle and aunt beyond ordinary familial ties. The refusals were compatible with Article 8.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appeals and upheld the First-tier Tribunal’s decision.
• First-tier Tribunal: dismissed the appeals after finding that the refusals under Appendix EU (Family Permit) did not interfere with protected Article 8 family life. Permission to appeal was granted on 6 September 2021.