Shaun Emambux v Secretary of State for the Home Department

Under the Withdrawal Agreement, an extended family member’s residence is being facilitated only where the person applied before the end of the transition period under the relevant national law. In the UK, that required an application under the Immigration (European Economic Area) Regulations 2016 for an EEA family permit or residence card. An EU Settlement Scheme application did not suffice.

Where an applicant completes a clear EUSS form, the Secretary of State must decide that application. There is no duty to recast it under the 2016 Regulations or advise the applicant to use that route. Article 18 safeguards do not confer residence status without an underlying right. A CJEU reference is unnecessary where the applicant falls outside Part Two of the Withdrawal Agreement.

The appellant, a Mauritian national, entered into an Islamic marriage in London with a French national and applied under the EU Settlement Scheme for leave to remain. The Secretary of State refused the application because the marriage evidence did not establish the required family relationship.

The First-tier Tribunal dismissed the appeal on 18 August 2021, and the Upper Tribunal dismissed a further appeal on 22 May 2023. Permission to appeal to the Court of Appeal was granted only on whether the EUSS application should have been treated as an application under the Immigration (European Economic Area) Regulations 2016. The issues also included whether the Secretary of State had to advise the appellant to make such an application and whether a reference to the CJEU was required.

The appeal was dismissed unanimously. Dingemans LJ gave the leading judgment, with Singh and Moylan LJJ agreeing.

1. Facilitation under the Withdrawal Agreement. Articles 10(2) and 10(3) apply to extended family members whose residence has been facilitated under national law. In the United Kingdom, that required an application under the Immigration (European Economic Area) Regulations 2016 for an EEA family permit or residence card before the end of the transition period. An application under the EUSS was a different application. This followed the approach in Siddiqa v Entry Clearance Officer [2024] EWCA Civ 248 and Celik v Secretary of State for the Home Department [2023] EWCA Civ 921.
2. Application actually made. The appellant completed a clear EUSS application form and supplied material in support of that application. The Secretary of State was therefore entitled to determine it under the EUSS. The case was unlike Eco v Ahmed UT-2022-002804, where accompanying correspondence showed that an application under the 2016 Regulations had in fact been made.
3. No duty to advise. Domestic law requires the Secretary of State to determine the application made. It does not require the Secretary of State to identify and advise upon other applications which might have been available. That conclusion was reinforced by the appellant’s previous unsuccessful applications under the 2016 Regulations and his insistence that he was already a spouse within the direct-family-member category.
4. Article 18. The assistance and proportionality safeguards in Article 18(1)(o) and (r) did not require residence status to be granted to a person lacking an underlying right. Under the constitutive scheme, applicants had to provide the documents establishing the relevant family relationship.
5. CJEU reference and remaining matters. Article 158(1) permits a reference only where a decision on the interpretation of Part Two is necessary to enable judgment. That condition was not met because the appellant had not applied for facilitation before the end of the transition period and therefore fell outside Part Two. The renewed marriage challenge was outside the permission granted and unsupported by the evidence. The appeal was dismissed.

• Court of Appeal (Civil Division): dismissed the appeal on 28 November 2024, holding that the EUSS application was not an application under the Immigration (European Economic Area) Regulations 2016 and that no CJEU reference was necessary: [2024] EWCA Civ 1459.
• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appellant’s appeal on 22 May 2023.
• First-tier Tribunal (Immigration and Asylum Chamber): dismissed the appeal against the Secretary of State’s refusal on 18 August 2021.