Secretary of State for the Home Department v Pritam Kumar Nagdev & Anor

Procedural safeguards under the Citizens’ Rights Directive become relevant to a third-country national’s loss of residence rights only where an expulsion decision is made. A refusal of a residence or permanent residence card is a different process and does not itself require proportionality consideration. A statement that the person should leave the United Kingdom does not amount to an expulsion decision. Where the applicant has asserted a right of residence, the available appeal against refusal provides effective legal protection of that asserted right. The safeguards identified in Chenchooliah v Minister for Justice and Equality [2019] EUECJ C-94/18 therefore do not apply in the absence of an expulsion decision.

The Secretary of State appealed against the First-tier Tribunal’s decision allowing Mr and Mrs Nagdev’s appeals against refusals of applications for permanent residence cards under regulation 21(5) of the Immigration (European Economic Area) Regulations 2016.

The appellants were Indian nationals whose claimed derivative residence rights depended on their son, formerly an Austrian citizen. Their son ceased to be an EU citizen in 2012, although he was later found to have retained permanent residence. The appellants accepted before the Upper Tribunal that they were no longer beneficiaries under the Directive and were not entitled to permanent residence. The central issue was whether proportionality and the procedural safeguards in the Directive applied despite the absence of an expulsion or removal decision.

1. The Secretary of State’s appeal was allowed. The First-tier Tribunal’s decision was set aside and a decision dismissing the appellants’ appeals was substituted.
2. The appellants ceased to be beneficiaries under Directive 2004/38/EC when their sponsor ceased to be a Union citizen. His subsequently recognised permanent residence did not confer residence rights on them, and they could not rely on him as a qualified person.
3. The Directive and the Immigration (European Economic Area) Regulations 2016 distinguish between rights of residence and permanent residence, governed by Chapters 3 and 4 of the Directive and Part 2 of the Regulations, and restrictions on those rights, governed by Chapter 6 and Part 4. A decision-maker refusing an application for residence or permanent residence need not also consider whether expulsion would be proportionate.
4. Chenchooliah v Minister for Justice and Equality [2019] EUECJ C-94/18 concerned an actual expulsion decision. The Court of Justice held that Article 15, and the safeguards in Articles 30 and 31, applied to an expulsion decision made because the third-country national had lost a right of residence. That reasoning did not assist the appellants because no expulsion decision had been made.
5. The Secretary of State was entitled to deal with the applications actually made, namely applications for permanent residence cards. The refusal letters’ statement that the appellants should make arrangements to leave did not constitute an expulsion decision or mean that enforcement would inevitably follow. The principle of effectiveness in Article 19(1) TEU did not require a wider remedy: the appellants had a right of appeal in which they could contend that they had a right of residence or permanent residence.

• First-tier Tribunal: On 9 February 2022, First-tier Tribunal Judge Freer allowed the appellants’ appeals against refusals of permanent residence cards, treating proportionality under EU law as applicable.
• Upper Tribunal (Immigration and Asylum Chamber): The Secretary of State’s appeal was allowed. The First-tier Tribunal decision was set aside and the appellants’ appeals were dismissed.