Leonard Vasa v The Secretary of State for the Home Department

Residence may be facilitated for the purposes of Article 10(2) of the Withdrawal Agreement by an immigration officer’s decision admitting an extended family member to enter and live in the United Kingdom with an EU-national relative. A formal family permit or residence card is not essential where such an individual decision was made. Although a passport stamp may not satisfy Appendix EU’s own relevant-document requirement, it can evidence the domestic residence decision protected by Article 18(1)(l)(iv). Refusal to accept it may breach the applicant’s Withdrawal Agreement rights. An unchallenged public decision is presumed valid and cannot ordinarily be collaterally impugned in an appeal against refusal of residence status.

Both appellants were Albanian nationals admitted to the United Kingdom with EU-national relatives under passport stamps stating that they were admitted under the Immigration (EEA) Regulations 2016. Mr Vasa entered in September 2020 with his Greek brother; Mr Hasanaj entered in March 2019 with his Italian sister.

The Secretary of State refused their applications for pre-settled or settled status because neither had a family permit or residence card. Mr Vasa’s appeal was dismissed by the First-tier Tribunal and allowed by the Upper Tribunal on an erroneous basis concerning a Greek residence permit. Mr Hasanaj’s appeal was allowed by the First-tier Tribunal but dismissed by the Upper Tribunal. The appeals concerned whether the admissions facilitated residence under Article 10(2) of the Withdrawal Agreement and whether refusal of status breached Article 18 rights.

Lord Justice Lewis gave the leading judgment. Lady Justice Nicola Davies and Lord Justice Underhill agreed.

1. Meaning of the admission decisions. The effect of the immigration officers’ decisions was assessed objectively by asking what a reasonable person would understand them to mean in context. The wording of the stamps, the purpose for which the appellants presented themselves, and the practical unreality of admitting them only to require immediate departure showed that each decision allowed entry and residence with an EU-national relative.
2. Article 10(2). Those decisions amounted to facilitation of residence by the relevant national authorities. The appellants therefore fell within Article 10(2) of the Withdrawal Agreement, even though they had not applied for or obtained formal documentation under the Immigration (European Economic Area) Regulations 2016. The reference to national legislation did not require proof that the domestic legislation had been correctly interpreted or applied. It recognised that the relevant residence right arose from a domestic legal act.
3. Article 18 and Appendix EU. The passport stamps were not family permits, residence cards or registration certificates and did not themselves satisfy Appendix EU’s relevant-document requirement. Nevertheless, for persons within Article 10(2), Article 18(1)(l)(iv) required recognition of a document issued by the relevant national authority evidencing facilitated residence. The stamps fulfilled that function. Refusal to accept them breached the appellants’ rights under the Withdrawal Agreement.
4. Validity of earlier decisions. Public decisions are presumed valid and continue to produce legal effects unless quashed or otherwise set aside. Relying on Smith v East Elloe RDC [1956] AC 736, the court held that the Secretary of State could not collaterally challenge the lawfulness or correctness of the unchallenged immigration decisions in these appeals. Boddington v British Transport Police [1999] AC 143 concerned a different collateral-challenge context.
5. Ancillary matters and disposition. The court did not need to determine whether presentation at border control could constitute an application under Article 10(3). It doubted that proposition and referred to Siddiqa v Entry Clearance Officer and others [2024] EWCA Civ 248. The passport stamps did not purport to grant leave to enter under section 4 of the Immigration Act 1971. The Upper Tribunal’s decision in Vasa was upheld on different grounds, and Hasanaj’s appeal was allowed.

• Court of Appeal (Civil Division) — in [2024] EWCA Civ 777, the Upper Tribunal’s decision in Vasa was upheld on different grounds and Hasanaj’s appeal was allowed.
• Upper Tribunal (Immigration and Asylum Chamber) — Vasa’s appeal was allowed on an erroneous basis concerning a Greek residence permit. Hasanaj’s appeal against the First-tier Tribunal decision was dismissed on the basis that his residence had not been facilitated.
• First-tier Tribunal — Vasa’s appeal was dismissed. Hasanaj’s appeal was allowed.