MD Yousef Ali & Ors v Secretary of State for the Home Department

The EU law principle of equivalence is comparative and requires a true domestic comparator. The comparison must be context-specific and focus on the purpose and essential characteristics of the allegedly similar claims, including the procedural protection said to be less favourable.

An application for a residence card as an extended family member of an EEA national seeks recognition of an EU-law right to reside outside the ordinary leave regime. An application for leave to remain under the Immigration Act 1971 seeks status within that regime. Their different purposes and essential characteristics mean that equivalence does not require the former applicant to be treated as if section 3C applied to an in-time application to vary leave.

The appellants, a Bangladeshi family, appealed to the Upper Tribunal against the First-tier Tribunal’s dismissal of their human rights appeals. The first appellant had applied for indefinite leave to remain under paragraph 276B of the Immigration Rules, relying on ten years’ continuous lawful residence. Before his earlier leave expired, the appellants had applied for residence cards as extended family members under the Immigration (European Economic Area) Regulations 2006.

The First-tier Tribunal rejected their EEA claims and held that section 3C did not apply. It also rejected the argument that the EU law principle of equivalence required the period during which the residence-card applications and appeals were pending to be treated as lawful residence. The central issue before the Upper Tribunal was whether the two types of application were true domestic and EU-law comparators.

1. Appeals dismissed. The First-tier Tribunal’s decision stood. Although the First-tier Tribunal had erred in treating section 3C(2)(ca) and (cb) as relevant to the equivalence argument, that error was immaterial because it had reached the correct conclusion.
2. Paragraph 276B requires at least ten years’ continuous lawful residence. Under paragraph 276A, lawful residence is defined by reference to existing leave, specified temporary admission or immigration bail followed by leave, or exemption from immigration control followed by leave. The appellants could not show that the disputed period fell within that definition.
3. The principle of equivalence requires a true comparator before any less favourable treatment can be established. The comparison is context-specific and must address the purpose and essential characteristics of the allegedly similar claims, as well as the procedural provision said to create the disadvantage.
4. An application for a residence card as an extended family member under regulations 8 and 17 of the Immigration (European Economic Area) Regulations 2006 seeks recognition that the applicant does not require leave under the Immigration Act 1971. An application for leave to remain outside the Immigration Rules seeks status under that Act. The different purposes and essential characteristics of the applications prevent them from being true comparators.
5. The fact that both applications involve an exercise of discretion does not alter the conclusion. The residual discretion to grant leave outside the Rules is materially different from the regulated discretion concerning an extended family member, which must take account of the advantage intended by the Citizens Directive.
6. The EU law principle of equivalence therefore did not require the first appellant to be treated as if section 3C had extended his leave while the residence-card applications and appeals were pending. The decision to dismiss the appeals on Article 8 grounds was not vitiated by legal error.

• First-tier Tribunal: On 26 May 2021, First-tier Tribunal Judge Richards-Clarke dismissed the appellants’ appeals against refusal of their human rights claims, including the paragraph 276B and Article 8 issues.
• Upper Tribunal (Immigration and Asylum Chamber): The appeals were dismissed and the First-tier Tribunal’s decision was allowed to stand. No anonymity direction was made.