Tanjina Siddiqa v Entry Clearance Officer

An extended family member falls within article 10(3) of the Withdrawal Agreement only by applying, before the end of the transition period, under the applicable national scheme for facilitation of entry and residence. An application under a different immigration route does not suffice.

Article 18 applies to extended family members whose entry has already been facilitated under the national scheme. Its duties to assist applicants and provide redress cannot convert an unsuccessful application under one route into an application under another. Clear application forms and guidance may lawfully require applicants to select the appropriate route.

The appellant, a Bangladeshi national and sister of a Portuguese citizen resident in the United Kingdom, applied before the end of the transition period for an EU Settlement Scheme family permit. She was ineligible under that scheme but might, subject to proving dependency, have qualified as an extended family member under the Immigration (European Economic Area) Regulations 2016.

The Entry Clearance Officer refused her application. The First-tier Tribunal dismissed her appeal, finding that no application had been made under the 2016 Regulations. The Upper Tribunal, comprising Hill J and Upper Tribunal Judge Kebede, upheld that decision on 10 February 2023.

The Court of Appeal considered whether the application and appeal should have been treated as arising under the 2016 Regulations, and whether articles 10(3), 10(5), 18(1)(o), 18(1)(r) and 21 of the Withdrawal Agreement required a different result.

1. Appeal dismissed. The First-tier Tribunal and Upper Tribunal were entitled to find that the appellant had applied only for an EU Settlement Scheme family permit. The selected online category expressly confirmed that choice, and the accompanying material did not refer to the EEA family permit scheme or the 2016 Regulations. Identifying the application made was largely a factual question, and no error of law justified appellate intervention.

2. Domestic law permits applicants to be required to make the appropriate application. The Secretary of State determines the application actually made and has no general duty to investigate whether a different application might have succeeded. An application may nevertheless be characterised according to its substance where the accompanying material clearly invokes another route. That was not this case.

3. Article 10(3) of the Withdrawal Agreement protects an extended family member who applied before the end of the transition period for facilitation under national law and whose residence is subsequently facilitated. In the United Kingdom this required an application under the EEA family permit scheme. An application under the EU Settlement Scheme did not meet that condition. Article 10(5) therefore did not require examination of the claimed dependency. In any event, the refusal was justified because the application made did not qualify under the selected scheme.

4. Article 18 applies to extended family members whose entry has been facilitated under the EEA family permit scheme. After that domestic facilitation step, a successful applicant may seek residence status under the United Kingdom’s constitutive scheme. The appellant had not achieved that step and could not invoke articles 18(1)(o) or 18(1)(r) to require correction or conversion of her application.

5. The outcome was consistent with proportionality, good administration and effectiveness. The 2016 Regulations provided a lawful facilitation scheme and the website gave clear guidance distinguishing close from extended family members. The Withdrawal Agreement created no free-standing right to convert an application under one scheme into an application under another after the relevant route had closed.

Dingemans LJ gave the judgment. Elisabeth Laing LJ and Baker LJ agreed.

1. Court of Appeal (Civil Division): The appeal was dismissed. The court upheld the finding that no application had been made under the Immigration (European Economic Area) Regulations 2016 and held that articles 10 and 18 of the Withdrawal Agreement did not require a different result.

2. Upper Tribunal (Immigration and Asylum Chamber): Hill J and Upper Tribunal Judge Kebede dismissed the appeal on 10 February 2023. They upheld the finding that the application was made under the EU Settlement Scheme and not under the 2016 Regulations.

3. First-tier Tribunal (Immigration and Asylum Chamber): The appeal was dismissed on 9 December 2021. The tribunal found that the appellant had selected and confirmed an EU Settlement Scheme family permit application and that the Entry Clearance Officer had no duty to determine an unmade EEA family permit application.