[2023] UKUT 00277 (IAC)

Allaraj (EEA EFMs; admission; IO’s stamps)

Heard at Field House

THE IMMIGRATION ACTS

Promulgated on 4 October 2023

Before

THE HON. MRS JUSTICE HILL DBE

UPPER TRIBUNAL JUDGE BLUNDELL

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

and

ELSON ALLARAJ

Respondent

Representation:

For the Appellant: Peter Deller, Senior Presenting Officer

For the Respondent: Qaseem Ahmed, instructed by Norton Folgate Solicitors

(1) Under Directive 2004/38/EC, the entry and residence of other (or extended) family members was to be facilitated by EU Member States. Pursuant to that duty, Member States were required to ensure that their national legislation contained criteria which enabled such persons to obtain a decision on their application for entry or residence which was founded on an extensive examination of their personal circumstances. In exercising that wide discretion, the Secretary of State created the Immigration (European Economic Area) Regulations 2016, which were prescriptive when it came to the making and consideration of applications by other family members.

(2) The 2016 Regulations required that applications for family permits were considered by Entry Clearance Officers and that applications for registration certificates and residence cards were considered by the Secretary of State. Immigration Officers were not able to consider applications for those documents, or to issue them.

(3) An extended family member who had applied for and been issued with a family permit, registration certificate or residence was, by regulation 7(3), to be treated as a family member provided that the relevant conditions continued to be satisfied and the document remained in force. A person to whom regulation 7(3) applied could be lawfully admitted to the United Kingdom by an Immigration Officer under regulation 11.

(4) A person who claimed to be an extended family member and to whom regulation 7(3) did not apply, could not be lawfully admitted by an Immigration Officer under the Regulations. Where an Immigration Officer stamped the passport of an extended family member “Admitted to the United Kingdom under the Immigration (EEA) Regulations 2016”, he did so without lawful authority unless regulation 7(3) applied.

(5) A stamp applied in such circumstances is of no legal effect in an appeal under the Immigration (Citizens' Rights Appeals) (EU Exit) Regulations 2020. It is neither a family permit nor a residence card. It is not a relevant document for the purposes of the Residence Scheme Immigration Rules and is not evidence that the person’s residence was facilitated by the United Kingdom for the purposes of Article 10(2) or (3) of the Withdrawal Agreement.

DECISION AND REASONS