An Albanian national was mistakenly allowed to enter the UK by an immigration officer who used a stamp described by the Home Office Presenting Officer as “a stamp which is regularly encountered, but the use of which is shrouded in mystery”. As a result, he did not meet the requirements of Appendix EU nor fall within the scope of the Withdrawal Agreement. That is the conclusion reached by the Upper Tribunal in Allaraj (EEA EFMs, admission, IO’s stamps) [2023] UKUT 00277.

Background

On 5 December 2020 the appellant travelled from the Czech Republic with his Czech national partner. His passport was stamped by an immigration officer in France stating that he was “Admitted to the United Kingdom under the Immigration (EEA) Regulations 2016”. This stamp was made as the appellant had satisfied the immigration officer that he was in a durable relationship with an EEA national.

The appellant’s partner was granted pre-settled status on 15 January 2021 and the appellant applied to the EU Settlement Scheme on 15 May 2021. The couple married on 4 August 2021, they had planned to do this earlier but it was delayed due to the pandemic.

The appellant’s application was refused on 22 December 2021. Two reasons were given for the refusal, the first was that the appellant did not hold a ‘relevant document’ as the durable partner of an EEA national. The second reason was that the evidence was insufficient to show that they had been in a durable relationship before 31 December 2020 or that it had continued after that.

His appeal was allowed by the First-tier Tribunal as the judge concluded that the relationship was durable and that this was the ‘key issue’. The Home Secretary appealed, arguing that the stamp was not a ‘relevant document’ and the immigration officer did not have the power to admit the appellant to the UK.

The Upper Tribunal found that the First-tier Tribunal had erred in law by failing to consider whether the appellant held a ‘relevant document’ for the purposes of the immigration rules, or whether he fell within the scope of the Withdrawal Agreement because his residence was being facilitated before the Brexit date. It was determined that the decision should be remade by the Upper Tribunal.

The Upper Tribunal’s decision

The two issues to be determined were:

• whether the stamp in the appellant’s passport was a relevant document (as defined in Appendix EUSS and required for a durable partner application under those rules); and
• whether the stamp and the decision of the immigration officer to make the stamp amounted to the facilitation of residence which brought the appellant within the scope of the Withdrawal Agreement.

The Home Secretary’s position was that the stamp had been put in the passport by mistake and that it was neither a relevant document not evidence of facilitation of residence. The appellant had not made an application for a family permit or residence card (both ‘relevant documents’) in the manner required in regulation 21 of the Immigration (European Economic Area) Regulations 2016.

The immigration officer working at the border was not empowered to issue either of those documents, it was argued. A family permit can only be issued by an entry clearance officer (i.e. an application is made outside of the UK and must be granted prior to arrival in the UK), and a residence card which is issued by the Home Secretary (i.e. in country applications decided by UKVI).

The Home Office presenting officer said that “it seemed that this had happened in a number of cases” and at [17] 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.

The appellant argued that the stamp was a residence card issued by the Home Secretary. Alternatively, that it showed his residence was being facilitated by the Home Secretary at the date of the UK’s withdrawal from the EU.

The Upper Tribunal said that ‘entry clearance officer’, ‘immigration officer’ and ‘Home Secretary’ each had “clearly delineated” roles within the regulations and that

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.

The Upper Tribunal concluded that the stamp was not a relevant document and so the appeal under the rules was dismissed.

The second ground was also dismissed on the basis that the appellant’s residence in the UK had not been facilitated before the end of the transition period. This was because he had not applied for a residence card or family permit. Further, as was the case in Celik v Secretary of State for the Home Department [2023] EWCA Civ 921 he could not bring himself within the scope of the Withdrawal Agreement as his marriage took place after the end of the transition period.

Conclusion

Hopefully Mr Allaraj will be able to obtain leave on another basis, as did Mr Celik. Aside from that, I have so many questions about this stamp, none of which are answered in this decision. How did the Home Office become aware of the stamp? Is it through other, similar applications that have been rejected, but perhaps earlier so that they were able to apply for and obtain the relevant documents before the end of the transition period? How many rejections under Appendix EU have there been because of the stamp? Do they have any idea how many other people out there have had their passport stamped in error? I suspect that Home Office record keeping means that the answers may remain a mystery, just like the stamp.