Tanjina Siddiqa v Entry Clearance Officer

The Court of Appeal dismissed the appellant's challenge to an Entry Clearance Officer's refusal of an on-line application made on 7 December 2020. The court upheld the factual finding that the application submitted on behalf of the appellant was for an EU Settlement Scheme (EUSS) family permit and not an EEA family permit under the Immigration (European Economic Area) Regulations 2016 (the 2016 Regulations), so there was no valid application under the 2016 Regulations to be considered. The court held that article 18(1)(o) and (r) of the Withdrawal Agreement did not apply to an out‑of‑country extended family member who had not had entry 'facilitated' under the domestic EEA family permit scheme and therefore the Secretary of State was not required to convert or treat the EUSS application as an application under the 2016 Regulations. The court applied domestic authorities on strict application of procedural requirements (including regulation 21 of the 2016 Regulations) and followed Union law principles on the scope of facilitation under article 3(2) of Directive 2004/38/EC and the Withdrawal Agreement (notably article 10(3) and (5)).

This is an appeal from an Upper Tribunal decision dismissing an appeal against the refusal by an Entry Clearance Officer (ECO) of an online family permit application dated 7 December 2020. The appellant, a Bangladeshi national and sister of a Portuguese national lawfully resident in the UK, applied on-line for a "European Family Permit" but the online form and selections indicated an application for an EU Settlement Scheme (EUSS) family permit. The ECO refused on 25 January 2021 because the appellant did not qualify as a close family member under the EUSS family permit scheme. The appellant argued that her application should have been treated as an application under the Immigration (European Economic Area) Regulations 2016 (the 2016 Regulations) for an EEA family permit as an extended family member dependent on her brother, and that the Secretary of State/ECO had obligations under the Withdrawal Agreement (in particular article 18(1)(o) and (r)) to facilitate and correct errors or omissions.

Procedural posture: the appeal was dismissed by the First-tier Tribunal on 9 December 2021 and by the Upper Tribunal on 10 February 2023. The Court of Appeal heard the appeal on 8–9 February 2024 and gave judgment on 14 March 2024.

Nature of relief sought: the appellant sought an order that her original application be treated as an application under the 2016 Regulations (EEA family permit) and determined accordingly; alternatively she sought a finding that the ECO/Secretary of State had breached the Withdrawal Agreement obligations to facilitate applications and to provide judicial redress.

Issues framed by the Court:

• whether the FTT was wrong to conclude the application was not an application under the 2016 Regulations;
• whether the Upper Tribunal erred in its interpretation and application of article 18(1)(o) of the Withdrawal Agreement;
• whether the Upper Tribunal erred in its interpretation and application of article 18(1)(r) and article 21 safeguards; and
• whether the interveners' reliance on articles 10(3) and 10(5) of the Withdrawal Agreement required a different outcome.

Reasoning and disposition: the court accepted the factual findings of the FTT and UT that the on-line form and the selections made showed an EUSS family permit application and there was no equivalent covering material requesting treatment as an EEA family permit (distinguishing ECO v Ahmed). The court held that article 18 of the Withdrawal Agreement applies to applicants whose entry or residence has been 'facilitated' under national law (i.e. successful EEA family permit applicants) and does not extend to an out‑of‑country extended family member whose application was not made under the 2016 Regulations. Accordingly article 18(1)(o) (obligation to help applicants avoid errors and to permit correction) and article 18(1)(r) (judicial redress/proportionality) did not apply to the application actually made. The court further held that articles 10(3) and 10(5) did not assist because the appellant had not applied under the domestic EEA family permit scheme before the end of the transition period. The appeal was dismissed.

The appeal is dismissed. The Court upheld the factual findings that the on-line application was for an EUSS family permit and not an application under the 2016 Regulations, and concluded that article 18 of the Withdrawal Agreement did not apply to the out‑of‑country extended family application in question because the applicant had not had her entry 'facilitated' under the domestic EEA family permit scheme. Thus there was no duty to treat or convert the EUSS application into an EEA family permit application and no breach of the cited provisions of the Withdrawal Agreement.

First-tier Tribunal (Immigration and Asylum Chamber) decision dated 9 December 2021 (appeal dismissed); Upper Tribunal (Immigration and Asylum Chamber) decision dated 10 February 2023 (Hill J and UTJ Kebede) dismissing the appeal; appealed to the Court of Appeal, judgment [2024] EWCA Civ 248 (14 March 2024).