What happens when you accidentally apply for an EU Settlement Scheme Family Permit when you meant to apply for an EEA Family Permit under the Immigration (EEA) Regulations 2016?

The answer: you are deprived of the benefit of the EU Settlement Scheme and the EU Withdrawal Agreement.

This is the effect of the Upper Tribunal’s decision in Siddiqa (other family members, EU exit) Bangladesh [2023] UKUT 47 (IAC).

Why are there two different types of application?

Before 31 December 2020 there were two legal regimes operating simultaneously: the EU Settlement Scheme under the UK’s immigration rules (“the EUSS”); and EU free movement law implemented in the UK by the Immigration (EEA) Regulations 2016 (“the 2016 Regulations”).

For EU nationals and their direct family members (i.e., spouses, children who are under 21 or dependant, and dependant parents), the 2016 Regulations were redundant. There was little point in applying for documentation under regulations which would cease to apply after the end of the Brexit transition period. It made more sense to apply under the EUSS.

More distant family members were in a different situation. They had to apply under the 2016 Regulations before 31 December 2020 before they could access the EUSS. There was, in effect, a two stage process with the 2016 Regulations acting as a gateway to the EUSS. This applied to unmarried partners, relatives who are dependent on the EU citizen, member of the EU citizen’s household, and those who require the personal care of the EU citizen on health grounds (referred to as extended or other family members).

As highlighted in Batool and others (other family members: EU exit) [2022] UKUT 00219 (IAC), the distinction between these two different types of family member was apparent from the eligibility criteria on the gov.uk website. However, it was not particularly obvious to an unrepresented applicant unfamiliar with the complexities of UK immigration law that an EUSS Family Permit and an EEA Family Permit were different things. The decision in Batool is considered in more detail here.

Making the wrong application

On 7 December 2020 Ms Siddiqa submitted an application to join her brother in the UK. She was, and still is, in Bangladesh. Her brother is a dual national of Bangladesh and Portugal and lives in the UK with status under the EUSS.

When completing her online application form Ms Siddiqa selected EUSS Family Permit as the application category. This was fatal to her application. She wasn’t eligible for an EUSS Family Permit as she was not a direct family member.

She meant to make an application for an EEA Family Permit under the 2016 Regulations. The EUSS option had been selected by mistake.

Can a clerical error with the click of a computer mouse commit someone to making an application which they know is doomed to fail?  

Conflicting Upper Tribunal decisions

In ECO v Ahmed and ors (unreported, UI-2022-002804-002809) the Upper Tribunal said no. In that case, the covering letter submitted with the application referred to the 2016 Regulations. It was obvious that was the basis of the application, even though it had been incorrectly labelled as an EUSS application.

In Ms Siddiqa’s case it was argued that, like in Ahmed, it was tolerably clear from the material submitted that the application was made under the 2016 Regulations. Ms Siddiqa was applying to join her brother: she was clearly applying as an extended family member rather than a direct family member.

The Upper Tribunal rejected this argument:

“We consider that the factual background to the Ahmed decision is markedly different to this case. The key reason why the Upper Tribunal made the decision it did in Ahmed was the nature of the covering letter which accompanied the applications… The position was different in this case. The covering letter did not specifically refer to the 2016 Regulations or give any other express indication that this was the nature of the application being made. It referred to a “European Family Permit Visa” which, objectively viewed, was at least consistent with an application for an EU Settlement Scheme Family Permit, the drop-down box for which had been selected (even if it could also be said to be consistent with an EEA family permit under the 2016 Regulations). In those circumstances, it was not unreasonable for the ECO to treat it as such, and not to review the contents of the application and consider whether it had been correctly advanced.” Siddiqa at [44] & [46]

As such, Ms Siddiqa had not made an application under the 2016 Regulations before 31 December 2020 and could not benefit from the EUSS. Her appeal was therefore dismissed.

Getting what you asked for

The Withdrawal Agreement requires the Home Office to:

1. Ensure that administrative procedures for applications are smooth, transparent and simple, and that any unnecessary administrative burdens are avoided (article 18(1)(e)).
2. Ensure that application forms are short, simple, and user friendly (article 18(1)(f)).
3. Help applicants to prove their eligibility and to avoid any errors or omissions in their applications; they must give applicants an opportunity to furnish supplementary evidence and to correct any deficiencies, errors or omissions (article 18(1)(o)).
4. Provide a right of appeal following refusal which ensures that decisions are proportionate (article 18(1)(r)).

The first, second, and fourth points were addressed in Batool. The Upper Tribunal held that:

“The guidance on www.gov.uk… shows that the Secretary of State has been at pains to provide potential applicants with the relevant information, in a simple form, including highlighting the crucial distinction between “close family members” and “extended family members”. That is a distinction which, as we have seen from the Directive and the case law, is enshrined in EU law. It is not a novel consequence of the United Kingdom’s leaving the EU. It is, accordingly, not possible to invoke sub-paragraphs (e) and (f) of Article 18 as authority for the proposition that the respondent should have treated one kind of application as an entirely different kind of application.”

In relation to proportionality, the Tribunal in Batool held that it is not disproportionate for the Home Office, faced with the scale of EUSS applications, to determine applications based on what an applicant specifically asks to be given.

In Siddiqa the Upper Tribunal relied on the same reasoning to dismiss an argument under article 18(1)(o). The provision must be read narrowly to exclude errors or omissions relating to the type of application made.

Ms Siddiqa asked for status under the EUSS. She wasn’t eligible for that. Her application was therefore correctly refused.

A transparent and simple system?

This is a harsh result. The system is not transparent and simple. Appendix EU is poorly drafted. Even the Upper Tribunal struggles to make sense of it at times. The High Court has ruled that certain aspects of the EUSS breach the Withdrawal Agreement suggesting that even the Home Office has misunderstood what it requires.

Yet, when an applicant makes a mistake by failing to make the right type of application, they are left high and dry. Article 18(1)(o) – a seemingly wide and flexible provision – is given a narrow reading. Applicants are deprived of the opportunity to correct deficiencies, errors and omissions due to the high number of applications (which is a result of the Home Office’s own policy choice to implement a constitutive scheme rather than a declaratory scheme – see here).

Selecting the wrong option on a drop down menu is excluded in the interests of administrative convenience. As is simply not realising that an EUSS application is different to an application under the 2016 Regulations (see Batool).  Similarly there is no flexibility for those who failed to make an application under the 2016 Regulations when their marriage was delayed due to COVID-19 (see Celik and the free movement write up here). This is not a user friendly system which avoids unnecessary administrative burdens. It is a bureaucratic mess.

Finally, the official headnote:

(1) In the case of an applicant who had selected the option of applying for an EU Settlement Scheme Family Permit on www.gov.uk and whose documentation did not otherwise refer to having made an application for an EEA Family Permit, the respondent had not made an EEA decision for the purposes of Regulation 2 of the Immigration (European Economic Area) Regulations 2016 (“the 2016 Regulations”). Accordingly the First-tier Tribunal was correct to find that it was not obliged to determine the appeal with reference to the 2016 Regulations. ECO v Ahmed and ors (UI-2022-002804-002809) distinguished.

(2) In Batool and Ors (other family members: EU exit) [2022] UKUT 219 (IAC), the Upper Tribunal did not accept that Articles 18(1)(e) or (f) of the Withdrawal Agreement meant that the respondent “should have treated one kind of application as an entirely different kind of application”; and that it was not disproportionate under Article 18(1)(r) for the respondent to “determine…applications by reference to what an applicant is specifically asking to be given”. There was no reason or principle why framing the argument by reference to Article 18(1)(o) should lead to a different result. Accordingly, consistently with the approach taken by the Upper Tribunal in Batool, Article 18(1)(o) did not require the respondent to treat the applicant’s application as something that it was not stated to be; or to identify errors in it and then highlight them to her.

(3) Annex 2.2 of Appendix EU (Family Permit) enables a decision maker to request further missing information, or interview an applicant prior to the decision being made. The guidance given by the respondent as referred to in Batool at [71] provides ” help [to] applicants to prove their eligibility and to avoid any errors or omissions in their applications” for the purposes of Article 18(1)(o)  Applicants are provided with “the opportunity to furnish supplementary evidence and to correct any deficiencies, errors or omission” under Article 18(1)(o). In accordance with Batool, Article 18(1)(o) did not require the respondent to go as far as identifying such deficiencies, errors or omission for applicants and inviting them to correct them. This is especially so given the “scale of EUSS applications” referred to in Batool at [72]. This provides a good reason for Article 18(1)(o) to be read narrowly to exclude errors or omissions of this sort, and this was the effect of the approach taken by the Upper Tribunal in Batool.