[2023] UKUT 00277 (IAC)

In his skeleton argument on behalf of the Secretary of State, Mr Deller made submissions which might properly be summarised in the following way:

In his oral submissions, Mr Deller maintained that the stamp in Mr Allaraj’s passport was neither a relevant document nor evidence of facilitation of residence. The stamp had been placed in the passport erroneously and it seemed that this had happened in a number of cases. Mr Allaraj was not the direct family member of an EEA national on 5 December 2020; he was her fiancé, which did not bring him within Article 2(2) of the Directive. The distinction between direct and other family members had been highlighted by the CJEU in Rahman v Secretary of State for the Home Department (Case C-83/11); [2013] QB 249. Even if the Immigration Officer had concluded that Mr Allaraj was the durable partner of an EEA national, he was not empowered to issue a family permit or a residence card. The former could only be issued by an Entry Clearance Officer, the latter by the Secretary of State. In each case, it was necessary for the officer in question to undertake an extensive examination of the personal circumstances. It was clear, Mr Deller submitted, that Mr Allaraj had not made an application for a family permit or a residence card in the manner specified in regulation 21.

Mr Deller submitted that enquiries within the Home Office suggested that the stamp had been brought into being so as to enable Immigration Officers to admit those who should benefit from the judgment of the CJEU in McCarthy v SSHD (C-202/13); [2015] 2 CMLR 13. There was no relevant provision in the Regulations, however, and the stamp was therefore wrong (even in those cases) to suggest that admission had been under the EEA Regulations. The Secretary of State could not shed light on the number of cases in which the stamp might have been used erroneously but it was seemingly in use across the country.

Mr Deller submitted that the skeleton argument for Mr Allaraj conflated the role of an Entry Clearance Officer and an Immigration Officer. The two had distinct roles, however, and that distinction was recognised in the Regulations and the Secretary of State’s policy guidance. The reality was that an Immigration Officer could not lawfully have done what was done in this case. Whilst it was accepted by the Immigration Officer that Mr Allaraj was in a durable relationship with his fiancée, there was no facilitation of residence. Mr Allaraj could not satisfy the Immigration Rules and he had no rights under the Withdrawal Agreement. Neither the guidance nor the Freedom of Information (“FOI”) response mentioned by his opponent were of any assistance; the latter clearly referred to those who were already in possession of a family permit on arrival in the United Kingdom.

The skeleton argument for Mr Allaraj was settled by Mr Jafar of counsel. He submitted, in summary, that the stamp in Mr Allaraj’s passport was a family permit, lawfully issued by the Immigration Officer at the border, after extensive questioning of Mr Allaraj and his then fiancée. It was submitted that Mr Allaraj was able to satisfy the requirements of the Immigration Rules as such and that his appeal fell to be allowed on that basis. Alternatively, the stamp showed that Mr Allaraj’s residence was being facilitated by the respondent at the point of the UK’s withdrawal from the EU.

Mr Jafar’s skeleton concluded with an observation that the Secretary of State’s department was either ‘functioning in a wholly incompetent manner’ or ‘feigning ignorance of her own actions, policies, rules and procedures’. The truth of the matter was revealed by a response to a Freedom of Information (“FOI”) request.

In his oral submissions for Mr Allaraj, Mr Ahmed felt unable to advance any of the arguments made in the skeleton argument. He asked us to note that it had been accepted by the FtT that the relationship was durable and that there had been no challenge to that finding. Mr Ahmed accepted in terms that the stamp in the passport was not a family permit. He accepted that there was a distinction between an Entry Clearance Officer and an Immigration Officer and that only the former could issue a family permit.

Mr Ahmed submitted that the stamp was a residence card issued by the Secretary of State, however. He based that submission on the contemporaneous notes kept at the border, which showed that the matter had been referred to officers with the designation ‘HO’. Mr Ahmed submitted that these letters showed that the Home Office had taken the ultimate decision and that the stamp was a residence card issued under regulation 18. We asked both advocates whether this was correct. Judge Blundell queried whether ‘HO’ necessarily stood for ‘Home Office’ or whether it might instead stand for ‘Higher Officer’, a term which had replaced ‘Chief Immigration Officer’ internally. Mr Ahmed was unable to address that question. Mr Deller made enquiries over the short adjournment.

On resuming, Mr Deller confirmed on instructions that Chief Immigration Officers and His Majesty’s Inspectors were now known as Higher Officers and Senior Officers respectively. The officers named in the minute (Ballard and Shone) were Higher Officers at the port. We invited him to confirm this in writing. We also asked the parties for any submissions which they wished to make in writing on the question of whether an Immigration Officer (or Border Force Officer) was empowered to take decisions which were specifically entrusted in the EEA Regulations to either an Entry Clearance Officer or the Secretary of State.

We duly received short further written submissions from Mr Deller and Mr Allaraj’s solicitors. Mr Deller confirmed the status of the two officers named in the minute. He was not able in the time available to shed any light on the question we have summarised immediately above. Mr Allaraj’s solicitors were not able to gainsay the Secretary of State’s submissions about the status of the officers. Nor were they able to offer any assistance on the question summarised immediately above. They underlined, however, the unsatisfactory nature of the situation in which Mr Allaraj found himself, having trusted the Immigration Officers to perform their roles in accordance with the law.

In order to minimise the length of this decision, we have appended the relevant provisions at Annex 1.