Secretary of State for the Home Department v Elson Allaraj

Under the Immigration (European Economic Area) Regulations 2016, the functions of an Entry Clearance Officer, the Secretary of State and an Immigration Officer were distinct. An Immigration Officer could admit an extended family member only where regulation 7(3) applied because the person held an applicable family permit, registration certificate or residence card. The officer had no power to issue those documents or to admit an extended family member without one. A passport stamp purporting to record admission under the Regulations was therefore unlawful and had no legal effect as a family permit, residence card or evidence of facilitated residence. Such a stamp could not establish entitlement under Article 10(2) or (3) of the Withdrawal Agreement or the Residence Scheme Immigration Rules.

The respondent, an Albanian national, appealed against refusal of his application under the EU Settlement Scheme. An Immigration Officer had stamped his passport at Coquelles on 5 December 2020, recording admission under the Immigration (European Economic Area) Regulations 2016, after accepting that he was in a durable relationship with a Czech national.

The First-tier Tribunal allowed the appeal because it accepted that the relationship was durable. The Upper Tribunal set that decision aside and directed that the appeal be remade, focusing on whether the stamp was a relevant document and whether the respondent’s residence had been facilitated before the end of the transition period. The issues were whether the stamp had legal effect under the Regulations and whether either ground of appeal under the Immigration (Citizens' Rights Appeals) (EU Exit) Regulations 2020 was made out.

1. Statutory roles and admission. Under the Immigration (European Economic Area) Regulations 2016, applications for family permits were considered by Entry Clearance Officers. Applications for registration certificates and residence cards were considered by the Secretary of State. Immigration Officers had no power to consider or issue those documents.
2. An extended family member who held an applicable document was treated as a family member under regulation 7(3), and could then be admitted under regulation 11. An extended family member without such a document could not be admitted by an Immigration Officer under the Regulations. The respondent had made no compliant application under regulation 21, and the officer had no power to admit him under the Regulations.
3. The stamp was neither a family permit nor a residence card. It was placed without lawful authority and could not establish a right of admission, lawful residence, or facilitated residence. The Tribunal distinguished R v Secretary of State for the Home Department, ex parte Ram [1979] 1 WLR 148, where the officer had acted with lawful authority. It also rejected the attempted reliance on the status of the officers marked “HO”, which referred to their grade and not to a decision by the Secretary of State or an authorised delegate.
4. Withdrawal Agreement. The respondent was at most an extended family member under Article 3(2)(b) of Directive 2004/38/EC. Applying Celik v Secretary of State for the Home Department [2023] EWCA Civ 921, Articles 10(2) and (3) required facilitation in accordance with national legislation. No relevant document had been issued, no required extensive examination and discretionary decision had occurred, and no compliant application for facilitation had been made before the end of the transition period. The respondent therefore fell outside Article 10(2) and (3), and could not succeed under the Withdrawal Agreement.
5. Residence Scheme Immigration Rules. The stamp was not a relevant document and did not evidence lawful residence or a durable-partner status meeting Appendix EU. The appeal was remade by dismissing it on both available grounds.

1. Upper Tribunal (Immigration and Asylum Chamber): The First-tier Tribunal’s decision was set aside and the decision was remade by dismissing the appeal.
2. Earlier Upper Tribunal decision: The Upper Tribunal allowed the Secretary of State’s appeal against the First-tier Tribunal decision and ordered that the decision be remade: [2022] UKUT 220 (IAC).
3. First-tier Tribunal: Judge Farrelly allowed the respondent’s appeal against refusal of his EU Settlement Scheme application.