[2023] UKUT 00277 (IAC)

Amongst many other things, the Withdrawal Agreement governs the rights of EU nationals and their family members to continue to reside in the United Kingdom following the departure of the United Kingdom from the European Union and the end of a transition period on 31 December 2020. Article 10 of the Withdrawal Agreement defines the persons who fall within its personal scope for those purposes. It has never been suggested that Mr Allaraj might conceivably fall within Article 10(1) or (4). Insofar as he has previously relied upon the Withdrawal Agreement, the focus has been on Article 10(2)-(3), which provide that the following categories of person fall within scope of the Agreement:

At [6] of his skeleton argument, Mr Deller submitted that Mr Allaraj does not fall under Article 3(2)(b) of the Directive because his relationship did not meet the UK’s definition of ‘durability’ by the end of the transition period. Lewis LJ made reference to that definition, and to the guidance within which it was to be found, at [17] of his judgment in Celik v SSHD. The guidance suggested that a relationship would be considered durable if it was established by evidence that the couple had cohabited for two years, but it was accepted that there might be circumstances in which a relationship was considered to be durable in the absence of such cohabitation. Mr Deller referred to this as a ‘rule of thumb’, borrowing from (although not citing) the expression used by the Upper Tribunal in YB (EEA reg 17(4) - proper approach) Ivory Coast [2008] UKAIT 00062; [2009] Imm AR.

We consider this submission to be made too belatedly. No reference was made to the rule of thumb before the FtT. The judge in the FtT concluded that the relationship was a durable one. The Secretary of State’s grounds of appeal to the Upper Tribunal contained no complaint that the judge had failed to consider the rule of thumb. Nothing in the decision of Upper Tribunal Judge Frances and Deputy Upper Tribunal Judge Davey suggests that there was any attempt by the Senior Presenting Officer then representing the Secretary of State to seek permission to amend the grounds. There is nothing in the Upper Tribunal’s decision which suggests any legal flaw in that particular conclusion which justified it being set aside. The first attempt to revisit that finding was in Mr Deller’s skeleton, which was filed and served less than 48 hours before the hearing. We accept Mr Ahmed’s submission, therefore, that the finding made by the FtT in this respect should remain undisturbed.

At [7]-[14] of his skeleton argument, however, Mr Deller submitted that Mr Allaraj was in any event unable to satisfy the remaining aspects of either Article 10(2) or (3). Mr Ahmed did not attempt to make a submission to the contrary and we consider that he was correct not to do so. Given the absence of counter argument on the point, we propose to explain our conclusions fairly briefly.

As Lewis LJ stated at [60] of Celik v SSHD, Articles 10(2) and (3) deal with situations in which the residence of an individual is facilitated by the host state in accordance with its national legislation. Article 10(2) applies where an application has been made and residence facilitated before the end of the transition period. Article 10(3) applies where an application was made before the end of the transition period but only granted, and residence facilitated, after the end of that period.

Mr Allaraj’s residence was not facilitated by the UK in accordance with its national legislation before the end of the transition period. As we have seen, Mr Allaraj was not granted a family permit or a residence card before IP Completion Day. There was no extensive examination of his personal circumstances by a relevant official before that point in time. In order to establish that his residence was facilitated before the end of the transition period, Mr Allaraj was required to demonstrate that such an examination had taken place and that the relevant official had decided in the exercise of their discretion to issue the document sought. Since none of those steps had occurred, he is not within the scope of Article 10(2). The placing of the stamp in the passport on 5 December 2020 could not amount to facilitation of residence and was beyond the lawful authority of the Immigration Officer for the reasons we have already given.

Nor is Mr Allaraj able to show that he is within the scope of Article 10(3). As Mr Deller submitted, he made no application for facilitation of residence before the end of the transition period. Such an application could, in the case of an extended family member, only be made to an Entry Clearance Officer or the Secretary of State and regulation 21 contained general requirements for the form of such an application. Whilst it is clear that Mr Allaraj sought admission to the UK under EU Law when he presented himself to the Immigration Officer on 5 December 2020, that application was not made in accordance with the applicable provisions of national legislation and cannot amount to an application which engages Article 10(3). In any event, Article 10(3) is to be read as a whole and cannot be met unless an application has been made before the end of the transition period and granted after that date: Celik v SSHD refers, at [95].

Mr Allaraj is therefore unable to bring himself within the scope of Article 10(2) or (3). We should perhaps note that he would also not have been able to bring himself within the scope of Article 10(1)(e) for the reasons given at [53]-[57] of Celik v SSHD: Mr Allaraj was not the family member of an EU national before the end of the transition period and he was not residing in the UK in accordance with Union Law before the end of the transition period.

In the circumstances, Mr Allaraj is unable to succeed on the ground that the respondent’s decision breached a relevant right conferred under the Withdrawal Agreement. He is not within the personal scope of that Agreement.