[2023] UKUT 00277 (IAC)

Directive 2004/38/EC (“The Citizens’ Rights Directive”) draws a clear distinction between the rights enjoyed by EEA nationals and their direct family members, on the one hand, and their extended family members, on the other. The distinction was examined and explained by the Grand Chamber of the CJEU in Rahman v SSHD. The Grand Chamber noted, at [19], that the European legislature had

“…drawn a distinction between a Union citizen’s family members as defined in Article 2(2) of Directive 2004/38, who enjoy, as provided for in the directive, a right of entry into and residence in that citizen’s host Member State, and the other family members envisaged in Article 3(2) of the directive, whose entry and residence has only to be facilitated by that Member State.”

The Grand Chamber went on to hold that Member States were not required to grant every application for entry or residence by such ‘other family members’. Member States were instead 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. It underlined the wide discretion conferred upon Member States when selecting those criteria but stated that the criteria had to be consistent with the normal meaning of the term ‘facilitate’, and the words relating to dependence in Article 3(2), and must not deprive that provision of its effectiveness.

Mr Allaraj is not an EEA national and he was not the spouse of an EEA national before IP Completion Day. He and his wife married in Walthamstow in August 2021. At the end of the Implementation Period, therefore, they were engaged but not married. It is beyond argument that a fiancé does not fall within the definition of a family member in Article 2(2) of the Citizens’ Rights Directive. When he presented himself to the Immigration Officer on 5 December 2020, he was at most the durable partner of an EEA national under Article 3(2)(b) of that Directive.

In exercising the wide discretion conferred by the Directive, the Secretary of State created national legislation which was prescriptive when it came to the making and the consideration of applications by other family members such as Mr Allaraj. The Immigration (European Economic Area) Regulations 2016 (which were revoked, subject to saving provisions, on 31 December 2020) were prescriptive in the following ways:

Regulation 11 governed the right of admission to the United Kingdom. Notably, that provision makes express reference to the role of the Immigration Officer. Equally notably, it makes no reference to the admission of extended family members. The reason for that is to be found in regulation 7(3). Where an extended family member has been issued with a family permit, registration certificate or residence, he must be treated as a family member provided that he continues to satisfy the relevant conditions in regulation 8 and the family permit (etc) remains in force. Where no such document has been issued by an Entry Clearance Officer or the Secretary of State, an Immigration Officer has no power to admit an extended family member, whether under regulation 11 or any other part of those Regulations.

We note two other features of regulation 11 before summarising our conclusions. Firstly, regulation 11(3) prohibited an Immigration Officer from placing a stamp in the passport of a non-EEA national admitted to the UK under that regulation if the person produced a residence card, derivative residence card, permanent residence card or qualifying EEA state residence card. The omission of a family permit from that list of documents is notable and we can see no reason why an Immigration Officer could not stamp the passport of a non-EEA national family permit holder to show that they had been admitted to the UK under the Regulations.

Secondly, we note that regulation 11(4) required an Immigration Officer to take certain steps before refusing admission to a person who fails to produce a document mentioned in regulation 11(1) or (2). The Immigration Officer must provide every reasonable opportunity for the document to be obtained by, or brought to, that person. He must also ‘allow that person to prove by other means’ that he falls within one of the four categories set out. The second category is ’a family member of an EEA national with a right to accompany that EEA national or join that EEA national in the United Kingdom’. This is significant for two reasons. It shows that an Immigration Officer may admit the family member of an EEA national even if they do not have a family permit (etc), provided that they can prove their status by other means. It also shows, by omission, that no such facility was available to extended family members; an extended family member who presented to an Immigration Officer without a family permit or residence card was not to be treated as a family member to whom this dispensation applied.

We therefore conclude that the correct analysis of the distinct roles of the Entry Clearance Officer, the Secretary of State and the Immigration Officer is as contended by Mr Deller. The Regulations do not use the terms ‘Entry Clearance Officer’, ‘Immigration Officer’ and ‘Secretary of State’ interchangeably. Each has a clearly delineated role within the framework provided by the Regulations. An Entry Clearance Officer is, by regulation 2, a person responsible for the grant or refusal of entry clearance. The Secretary of State’s functions include the consideration of applications made from within the United Kingdom and to undertake the ‘extensive examination’ required by regulation 12(5) and 18(5). Immigration Officers featured on fifteen occasions in the Regulations, performing specifically defined functions such as those we have detailed in regulation 11. It is clear that the Secretary of State did not, when making the Regulations, confer upon Immigration Officers the power to consider applications for family permits or residence cards. (For the sake of completeness, we should note that there is nothing before us to suggest that the Secretary of State delegated her powers, or those given to Entry Clearance Officers, to Immigration Officers (in contrast to the lawful delegation of deportation decisions to Immigration Inspectors considered in R v SSHD ex parte Oladehinde [1991] 1 AC 254). Given the way in which the Regulations are framed, it would have been surprising if she had done so.)

Whether or not the absence of such a power is inconsistent with the normal meaning of the word ‘facilitate’ and whether it deprived Article 3(2) of its effectiveness are not questions which arise in the context of this appeal. As we have explained at [26] above, the grounds upon which this appeal may be brought are narrowly circumscribed and arguments such as those are not justiciable in such an appeal. Had we been able to consider such questions, however, we would have inclined to the view that the absence of such a power was wholly in accordance with the duty imposed by Article 3(2).

Given the extensive examination which must take place before those who are accepted to be extended family members are granted a family permit or residence card, there was every reason for the Secretary of State to conclude that such applications should not be presented to an Immigration Officer at a port of entry. As was made clear in Rahman v SSHD, the Secretary of State’s obligation was to ensure that the national legislation contained criteria which enabled extended family members to obtain a decision on their application for entry or residence. In stipulating the means by which an extended family member was to make such applications, and in stipulating the specific personnel who were to consider those applications, it seems to us that the Secretary of State formulated national legislation which did not deprive Article 3(2) of its effectiveness. For the avoidance of doubt, the views expressed in the latter half of this paragraph are necessarily obiter.

The position, in summary, is as follows. The 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. 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. 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.

It is within this framework that we must examine the actions of the Immigration Officer at Coquelles on 5 December 2020.

There is a suggestion in the Immigration Officer’s note that he might have considered Mr Allaraj to be a direct family member, but he was not. As we have seen, he could only have claimed to be an extended family member by asserting that he was in a durable relationship with an EEA national. Whilst an Immigration Officer had the discretion we have considered above, to admit a direct family member who did not produce a family permit or other such document, no such discretion was conferred in respect of extended family members.

Mr Allaraj had never made an application for a family permit or for a residence card in a manner which complied with regulation 21. Whilst regulation 21 permitted such an application to be made in person, the general rule was that such an application was still to be made using the specified form. Mr Allaraj is not said to have asserted any circumstances beyond his control which rendered him unable to apply in writing.

More fundamentally, however, it is clear for the reasons that we have set out that an application for a family permit is to be considered by an Entry Clearance Officer and an application for a residence card is to be considered by the Secretary of State (as a non-EEA national, Mr Allaraj could not have been issued with a registration certificate). It follows from that analysis that we reach the clear conclusion that the Immigration Officer had no power to admit Mr Allaraj ‘under the EEA Regulations 2016’ on 5 December 2020. Mr Allaraj was not an extended family member to whom regulation 7(3) applied and the Regulations conferred no power on the Immigration Officer to admit him.

The guidance cited in Mr Jafar’s skeleton argument is of no assistance, referring as it does to the consideration of applications for family permits by Entry Clearance Officers. As we have explained, Mr Allaraj’s application was not for a family permit and it was not considered by an Entry Clearance Officer. Mr Deller is correct in his submission that the skeleton argument seeks impermissibly to conflate the distinct roles of Entry Clearance Officer and Immigration Officer.

The FOI response cited in Mr Jafar’s skeleton argument is also of no assistance, referring as it does to stamps placed by Border Force Officers ‘in the passport of a Family Permit holder’. We have considered at [33] above the ability of an Immigration Officer to place a stamp in the passport of a family permit holder. The FOI response goes no way at all to establishing that a Border Force Officer might issue a family permit by stamping the passport.

As we have recorded, Mr Ahmed did not seek to persuade us that Mr Deller’s submissions in these respects were wrong. His submission was, instead, that the decision to admit Mr Allaraj was not a decision taken by an Immigration Officer. In reliance on the letters ‘HO’ in the minute created by the Immigration Officer, he submitted that the decision had actually been taken by the Secretary of State or by a person properly delegated by her to take such a decision.

With respect to Mr Ahmed, that rather tentatively made submission is unsustainable. As was made clear by Mr Deller and accepted by Mr Allaraj’s solicitors in post-hearing submissions, the letters ‘HO’ in this context refer to the grade of the Immigration Officers in question. The matter was referred by a Border Force Officer to two Higher Officers, who both considered (wrongly) that they had the power to admit Mr Allaraj to the United Kingdom under the EEA Regulations. The minute provides no basis for concluding that the case was referred to a decision maker authorised by the Secretary of State to consider applications for a residence card.

In our judgment, therefore, the position under the Immigration (EEA) Regulations 2016 was quite clear. An Immigration Officer had no power under those Regulations to consider an application for a family permit or a residence card and had no power under the Regulations to admit an extended family member to the UK where that person did not hold such a document.

With some encouragement from the Upper Tribunal, Mr Deller suggested that the stamp which was used in this case was brought into being to ensure that Immigration Officers were able to act in accordance with the judgment of the CJEU in McCarthy v SSHD. On reflection, we think it is preferable not to engage in further speculation on the point. What matters for the purpose of this decision is our clear conclusion that an Immigration Officer had no power to admit Mr Allaraj under the Regulations.

As Mr Deller submitted, that conclusion marks the difference between this case and cases such as R v SSHD ex parte Ram [1979] 1 WLR 148, in which an Immigration Officer had mistakenly, but with lawful authority, stamped the applicant’s passport to show that he had indefinite leave to enter. The applicant – who had relied on the stamp while remaining in the UK and setting up a business here – had not been lawfully detained by a subsequent Immigration Officer and his application for a writ of habeus corpus was granted accordingly. Here, in contrast, the Immigration Officer was not acting with lawful authority when he purportedly admitted Mr Allaraj to the United Kingdom.

It follows from the above that Mr Allaraj held neither a family permit nor a residence card under the EEA Regulations on 5 December 2020 or thereafter. Having reached that conclusion, we turn to consider Mr Allaraj’s situation with reference to the two grounds of appeal which are available to him under the 2020 Regulations.

We will consider those questions with reference to the decision of the Court of Appeal in Celik v SSHD [2023] EWCA Civ 921. That judgment was handed down on 31 July 2023, after the conclusion of argument in this appeal. Neither party has sought permission to make submissions on that judgment and we did not consider it necessary to invite the parties to do so, given the Court of Appeal’s substantial endorsement of the Upper Tribunal’s decision: [2022] UKUT 220 (IAC).