[2023] UKUT 00277 (IAC)

This appeal concerns a stamp which was placed in Mr Allaraj’s passport by an Immigration Officer at the juxtaposed control in Coquelles, France on 5 December 2020. It stated that he was:

“Admitted to the United Kingdom under the Immigration (EEA) Regulations 2016”

The stamp was placed there because the Immigration Officer was satisfied that Mr Allaraj was in a durable relationship with an EEA national. A judge of the First-tier Tribunal reached the same conclusion about the relationship and allowed Mr Allaraj’s appeal against the Secretary of State’s subsequent decision to refuse his application for pre-settled status under the EU Settlement Scheme. The Secretary of State appealed against that conclusion.

The Secretary of State contended that the judge had failed to consider whether his finding about the relationship entitled Mr Allaraj to any relief on the only two grounds of appeal which were available to him in an appeal of this nature. The Upper Tribunal (UTJ Frances and DUTJ Davey) allowed the Secretary of State’s appeal. It found that the judge had failed to consider whether Mr Allaraj held a ‘relevant document’, so as to entitle him to succeed under the Immigration Rules or whether his residence was being facilitated before the United Kingdom’s withdrawal from the European Union, so as to bring him within the personal scope of the Withdrawal Agreement. It ordered that the decision on the appeal should be remade in the Upper Tribunal following a further hearing.

The Secretary of State’s submission, in broad outline only at this stage, is that the stamp was not a relevant document and that it could not indicate that Mr Allaraj’s residence was ever facilitated. She submits that the Immigration Officer had no power to admit him to the United Kingdom under the Immigration (European Economic Area) Regulations 2016 (“the EEA Regulations” and that the placing of the stamp in the passport was ultra vires the powers conferred upon him.

We are told that there are many other similar cases concerning what Mr Deller described as ‘a stamp which is regularly encountered, but the use of which is shrouded in mystery’. Regardless of the conclusions we reach on this appeal, we record at the outset our clear view that this is a most unsatisfactory state of affairs which has placed people such as Mr Allaraj in a position which is characterised by a lack of legal certainty which is anathema to an orderly system of immigration control.