Tanjina Siddiqa v Entry Clearance Officer

An applicant who selects an EU Settlement Scheme family permit and whose supporting material does not clearly identify an application for an EEA family permit has not thereby made an EEA decision under the Immigration (European Economic Area) Regulations 2016. The decision maker is entitled to determine the application according to the route expressly selected.

Article 18(1)(o) of the Withdrawal Agreement requires an opportunity to provide supplementary evidence and correct deficiencies, errors or omissions. It does not require the decision maker to identify an applicant’s mistaken choice of application route and invite correction, particularly given the scale of applications.

The appellant, a Bangladeshi national living outside the United Kingdom, applied to join her brother, a Portuguese and Bangladeshi national with limited leave under the EU Settlement Scheme. In the online form she selected an EU Settlement Scheme family permit, although she later argued that she intended to apply as an extended family member under the Immigration (European Economic Area) Regulations 2016.

The Entry Clearance Officer refused the application under Appendix EU (Family Permit). The First-tier Tribunal dismissed the appeal, holding that the application was made under the EU Settlement Scheme and that it was not required to consider the EEA Regulations. The central issues were whether the respondent had made an EEA decision and whether Articles 18(1)(o) and (r) of the Withdrawal Agreement required the application to be treated as one under the EEA Regulations.

1. Appeal dismissed. The First-tier Tribunal had not materially erred in law. Its decision was not set aside and stood.
2. The right of appeal under regulation 36 of the Immigration (European Economic Area) Regulations 2016 arose only if the respondent had made an EEA decision within regulation 2. The application form expressly confirmed that an EU Settlement Scheme family permit was sought. The accompanying declaration referred only to a European family permit visa and did not clearly identify an application under the EEA Regulations.
3. ECO v Ahmed and ors (UI-2022-002804-002809) was distinguishable. In that case, the covering letters expressly referred to the EEA Regulations and the relevant regulations and authorities. Here, the surrounding material did not correct or overcome the route selected in the online form.
4. The approach was consistent with CP (section 86(3) and (5): wrong immigration rule) Dominica [2006] UKAIT 00040. That authority did not impose a duty to consider a different legal scheme from the one under which the application was made.
5. For the purposes of argument, the appellant was permitted to rely in principle on Article 18 of the Withdrawal Agreement. However, Article 18(1)(o), read with Article 18(1)(r), did not require the respondent to treat an application as a different kind of application from that stated, or to identify the applicant’s error and invite correction. Consistently with Batool and Ors (other family members: EU exit) [2022] UKUT 219 (IAC), the respondent could determine the application by reference to what the applicant specifically requested.
6. Annex 2.2 of Appendix EU (Family Permit) allowed the decision maker to request missing information or interview the applicant. The guidance and application process provided an opportunity to furnish supplementary evidence and correct deficiencies, but Article 18(1)(o) did not require the respondent to identify and highlight the mistaken application route. The narrow reading was justified in particular by the scale of EUSS applications.

• Upper Tribunal (Immigration and Asylum Chamber): appeal dismissed; the First-tier Tribunal’s decision was not set aside.
• First-tier Tribunal: Judge Rodger dismissed the appeal against the Entry Clearance Officer’s refusal dated 25 January 2021. The decision was promulgated on 9 December 2021.