The Court of Appeal has upheld the Upper Tribunal’s decision that those who applied for the wrong type of family permit before the end of the Brexit transition period cannot benefit from the EU Settlement Scheme or the EU Withdrawal Agreement.

The decision is Siddiqa v Entry Clearance Officer [2024] EWCA Civ 248. The leading judgment is provided by Lord Justice Dingemans.

The Upper Tribunal’s decision

In February 2023 the Upper Tribunal considered an appeal from Ms Siddiqa; a Bangladeshi national who submitted an application in December 2020 to join her brother in the UK. Her brother is a dual national of Bangladesh and Portugal. Ms Siddiqa accidentally applied for an EU Settlement Scheme Family Permit instead of an EEA Family Permit under the Immigration (European Economic Area) Regulations 2016 (“the 2016 Regulations”).

The Upper Tribunal held that, as a result of this mistake, no application for “facilitation” had been made before the end of the Brexit transition period. As such, she could not benefit from the Withdrawal Agreement and her appeal was dismissed.

EU law requires the UK to “facilitate entry and residence for” dependent family members of EU citizens. That obligation was implemented by the 2016 Regulations. Ms Siddiqa ought to have applied for an EEA Family Permit under those regulations as they acted as a gateway to the EU Settlement Scheme for family members such as dependent siblings. An application could only be made under the post-Brexit EU Settlement Scheme after the UK had facilitated the family member’s residence under the 2016 Regulations.

The obligation to facilitate the residence of these family members came to an end on 31 December 2020. After that date, an application for facilitation could no longer be made.

The Upper Tribunal’s decision is discussed in more detail here:  More bad news from the Upper Tribunal for extended family members of EU citizens – Free Movement.

The Court of Appeal’s decision

The court considered three issues:

• Whether the Upper Tribunal should have found that the First-tier Tribunal was wrong to decide that Ms Siddiqa had not made an application for facilitation of entry;
• Whether the Upper Tribunal’s interpretation and application of articles 18(1)(o) and 18(1)(r) of the Withdrawal Agreement was wrong; and
• Whether articles 10(3) and 10(5) of the Withdrawal Agreement required the appeal to be allowed. This point was argued by the Independent Monitoring Authority and the charitable organisations the Aire Centre and Here for Good, who intervened in the case.  

What application was made?

In relation to the first issue, the Court of Appeal held that all the Home Office is required to do is to assess the application made. The question of what application has been made is not always straightforward. As noted by the court:

“In domestic law, if an application has purportedly been made under the EUSS family permit scheme when it is, as a matter of fact, another application it can be treated as such, compare ECO v Ahmed. In that case the applicants, who were brothers of an EU national with leave to remain in the UK, had gone to the starting web page for both EUSS family permit and EEA family permit applications. They had chosen the EUSS family permit drop box, when it was common ground that they could not satisfy those provisions, and put in a covering letter to the effect that they were making an application under the 2016 Regulations, for an EEA family permit, making reference to specific regulations in the 2016 Regulations. In those circumstances the FTT and the UT found that the applicants had in reality made an application under the 2016 Regulations. By contrast, in this case there was no such letter referring to the EEA family permit or the 2016 Regulations.” [67]

Deciding what sort of application has been made is a largely factual decision. It depends on what was said in the application form and the accompanying documents. In Ms Siddiqa’s case, the First-tier Tribunal had decided, after considering the facts of her case, that she had made an application for an EU Settled Status Family Permit. Lord Justice Dingemans was not willing to overturn this:

“This was not a particularly surprising finding given the options selected to complete the form submitted on behalf of Ms Siddiqa and I can identify no error of law which would permit this court to interfere with this finding of fact.” [68]

As such, the Upper Tribunal’s decision on this issue was upheld.

Article 18 of the Withdrawal Agreement

The Home Office must help applicants avoid any errors or omissions in their applications and give them an opportunity to correct any deficiencies, errors or omissions (article 18(1)(o)). A right of appeal following refusal, with ensures that decisions are proportionate, is also required (article 18(1)(r)).

The Upper Tribunal adopted a very narrow interpretation of these provisions, deciding that they did not extent to errors or omissions relating to the type of application made.

The Court of Appeal didn’t even get as far as interpreting article 18, deciding instead that it simply didn’t apply to Ms Siddiqa:

“…the provisions of article 18, when properly interpreted, apply to extended family members whose entry has been facilitated under the EEA family permit scheme. Once that step under domestic law and the 2016 Regulations has been achieved, the successful applicant can apply for residence pursuant to article 18 of the Withdrawal Agreement under the relevant UK scheme.”

Essentially, article 18 only kicks in once entry has been facilitated by the UK under the 2016 Regulations and a subsequent application is made under the EU Settlement Scheme. As Ms Siddiqa made the wrong type of application, she does not benefit from article 18.

Article 10 of the Withdrawal Agreement

This issue was not considered by the Upper Tribunal. It was raised for the first time in the Court of Appeal. Article 10(3) allows those who have applied for facilitation before 31 December 2020 to benefit from the Withdrawal Agreement. Article 10(5) requires an extensive examination of the applicant’s personal circumstances. The interveners argued that these provisions required Ms Siddiqa’s appeal to be allowed.

Lord Justice Dingemans disagreed. Ms Siddiqa did not make an application for facilitation before 31 December 2020 and, as such, was not covered by article 10(3). In relation to article 10(5), an extensive examination of Ms Siddiqa’s circumstances to determine whether she was dependent on her brother would have been undertaken if she had made an application under the 2016 Regulations. However, as she did not make that application such an examination was not required.

Comment

This decision does not completely close the door on applicants who accidentally selected the wrong visa category when making an application to join their EU family member in the UK.

As noted above, in some cases, it may well be apparent from the documentation submitted with the application that it was an application for facilitation under the 2016 Regulations. The visa category selected in the drop down menu is not determinative. It is just one factor. It is also necessary to consider:

• Whether the error selecting the visa category was explicitly drawn to the Home Office’s attention prior to a decision being issued (as happened in the unreported case SSHD v Hussain)
• Whether the letter, or other documents, accompanying the application specifically refer to the 2016 Regulations or EU free movement law (as happened in the unreported case ECO v Ahmed and ors)
• Whether there were other family members who applied simultaneously and the error was only made in relation to one of the applications (as happened in the unreported case Yorke & another v ECO)

Each case will ultimately turn on its own facts. Siddiqa does not establish that an online EU Settlement Scheme application can never be regarded as an application for facilitation of entry. However, where there is no reference to EU law or the 2016 Regulations, it is likely to be difficult to demonstrate that the application is, in reality, an application under those regulations. Applicants who find themselves in this situation will need to find some other basis for entering the UK. This is precisely what Ms Siddiqa did; entering the UK as a Skilled Worker in June 2023 while her appeal was pending.