Shabbir Kutbuddin & Ors v Secretary of State for the Home Department

Under the Immigration (European Economic Area) Regulations 2016, an extended family member relying on the Surinder Singh route need not show prior lawful residence in the host member state in the sense of holding an EU residence card or domestic immigration leave. That requirement has no basis in the relevant EU law or CJEU jurisprudence.

The decisive question is whether the residence with the British citizen sponsor was genuine, in the sense of being real, substantive or effective, and whether family life was created or strengthened during that residence. Motive is immaterial absent abuse of rights or fraud. The status of the extended family member in the host state does not itself determine whether the derived right of facilitation exists.

The appellants, Indian nationals comprising a husband, wife and two daughters, appealed against the First-tier Tribunal’s dismissal of their linked appeals under the Immigration (European Economic Area) Regulations 2016. They had lived in Ireland with a British citizen sponsor who was exercising free movement rights and had then returned with him to the United Kingdom.

The Secretary of State accepted the sponsor’s work in Ireland and the appellants’ status as extended family members. The refusal turned solely on Regulation 9(1A)(b), namely whether they had been lawfully resident in Ireland throughout the relevant period. The central issue was whether that requirement had any basis in EU law.

1. Appeals allowed. The First-tier Tribunal’s decision was set aside by consent.
2. Regulation 9 is based on the Surinder Singh line of CJEU authority and the derived right of facilitation recognised for extended family members in Banger C-89/17 [2019] 1 WLR 845. That right requires the Secretary of State to undertake an extensive examination of the applicant’s personal circumstances.
3. Regulation 9(1A)(b) could not lawfully be interpreted as requiring an extended family member to have held an EU residence card or equivalent documentation in the host member state. In O and B C-456/12 [2014] 3 WLR 799, no material weight was placed on the absence of a residence card, while the mere grant of one was not determinative. The reasoning in Christy [2018] EWCA Civ 2378 also rejected that approach.
4. Nor could the provision be read as requiring domestic immigration leave throughout the period of residence. The CJEU’s reasoning in Metock C-127/08 [2009] 1 WLR 821, applied by analogy, rejected a prior lawful-residence requirement and treated the manner of entry as immaterial to the derived EU-law protection, subject to proportionate sanctions or measures justified under the Directive.
5. The relevant concept is genuine residence. In ZA [2019] UKUT 00281 (IAC), the Upper Tribunal explained that genuineness means residence that is real, substantive or effective. Motive is irrelevant unless abuse of rights or fraud is established. The status of the non-EEA family member does not determine whether residence was genuine.
6. The contrary observations in Christy concerning an illegal immigrant were expressly obiter. They did not provide a sound basis for refusing facilitation where the other requirements were met. The refusal and the First-tier Tribunal’s decision were therefore unlawful insofar as they treated continuous lawful residence as determinative.

• Upper Tribunal (Immigration and Asylum Chamber): allowed the appeals and set aside the First-tier Tribunal’s decision by consent.
• First-tier Tribunal: dismissed the linked appeals under the Immigration (European Economic Area) Regulations 2016.