Introduction

In the landmark case Secretary of State for the Home Department v Rexhaj ([2024] EWCA Civ 784), the England and Wales Court of Appeal (Civil Division) addressed pivotal questions concerning the EU Settlement Scheme (EUSS) and its interplay with the provisions governing family permits. The appellant, Mrs. Have Rexhaj, an Albanian national, sought settlement rights in the UK as the dependent parent of an EEA citizen, Ms. Laura-Marinela Prednicea. The crux of the dispute revolved around whether Mrs. Rexhaj was required to demonstrate dependency on her EEA national sponsor when applying from outside the UK for settlement under the EUSS.

This case delves deeply into the legislative framework established by the Withdrawal Agreement, the Immigration (European Economic Area) Regulations 2016, and the subsequent amendments enacted by the Immigration (EU Settlement Scheme) Regulations 2020. The judgment elucidates the boundaries and obligations imposed on non-EEA family members seeking residency in the UK post-Brexit, setting a significant precedent for future applications under the EUSS.

Summary of the Judgment

Mrs. Rexhaj applied for an EU Settlement Scheme Family Permit (EUSS FP) on 21 June 2021, identifying Ms. Prednicea as her sponsor and asserting financial dependency. The permit was granted on 15 November 2021, allowing Mrs. Rexhaj entry into the UK. Upon arrival, she applied for leave to remain under the EUSS but was refused on the grounds that she failed to demonstrate dependency on her sponsor, which the Secretary of State contended was a requisite under the relevant Appendix EU provisions.

Mrs. Rexhaj's initial appeal to the First-tier Tribunal was dismissed, but the Upper Tribunal overturned this decision, holding that the leave to enter was granted under Appendix EU, thereby assuming dependency under sub-paragraph (c)(i) of the 'dependent parent' definition. The Secretary of State appealed this decision to the Court of Appeal.

The Court of Appeal ultimately upheld the Secretary of State's position, ruling that the leave to enter was indeed granted under Appendix EU (Family Permit) and not Appendix EU. Consequently, Mrs. Rexhaj was subject to the dependency requirement, and her appeal was allowed.

Analysis

Precedents Cited

The judgment references several key precedents and legislative instruments that shaped the court’s reasoning:

• Directive 2004/38/EC (Citizens' Rights Directive): Established the rights of EU citizens and their family members to move and reside freely within the EU.
• European Union (Withdrawal Agreement) Act 2020: Incorporated the Withdrawal Agreement into UK domestic law, ensuring continuity of residence rights post-Brexit.
• Mahad v Entry Clearance Officer [2009] UKSC 16: Emphasized that Immigration Rules should be interpreted sensibly, considering their administrative and policy-oriented nature.
• Lim v Entry Clearance Officer, Manila [2015] EWCA Civ 1383: Provided a summary of the relevant law concerning dependency within the EUSS framework.

These precedents informed the court’s understanding of the legislative intent and the practical implications of the EUSS provisions, particularly regarding the dependency requirement for non-EEA family members.

Legal Reasoning

The Court of Appeal’s legal reasoning centered on the interpretation of the EUSS Appendices EU and EU (Family Permit). The key points of contention were:

• Definition and Scope of Appendices: The court examined whether the leave to enter granted to Mrs. Rexhaj was under Appendix EU (FP) or Appendix EU. The distinction was crucial because Appendix EU imposes a dependency requirement, whereas Appendix EU (FP) facilitated entry clearance without necessarily invoking the same conditions.
• Dependency Assumption: Sub-paragraph (b)(iii) of the 'dependent parent' definition in Appendix EU (FP) initially assumed dependency for applications made before 1 July 2021. However, the court clarified that this assumption did not extend to the subsequent leave to enter under Appendix EU.
• Operational Basis for Leave to Enter: The court determined that the leave to enter issued to Mrs. Rexhaj was conclusively under Appendix EU (FP), not Appendix EU, thereby necessitating the demonstration of dependency as per Appendix EU’s provisions.
• Consistency and Interpretation: Emphasizing coherent interpretation, the court argued against the Upper Tribunal’s reading that conflated the two appendices, enhancing clarity that each appendix operates within its defined scope.

Ultimately, the court concluded that Mrs. Rexhaj’s leave to enter did not fall under Appendix EU, rendering the dependency requirement applicable and leading to the allowance of the Secretary of State's appeal.

Impact

This judgment has profound implications for non-EEA family members seeking settlement in the UK under the EUSS:

• Clarification of Dependency Requirements: The ruling underscores the necessity for applicants to substantiate dependency when applying from outside the UK, thereby tightening the criteria for settlement under the EUSS.
• Separation of EUSS Appendices: By distinctly interpreting Appendices EU and EU (FP), the court eliminates ambiguity regarding the operational framework governing different aspects of the EUSS, promoting more predictable legal outcomes.
• Administrative Consistency: The decision mandates more rigorous adherence to the defined legislative pathways, reducing potential administrative discrepancies and enhancing fairness in the adjudication process.
• Precedential Value: As the Court of Appeal’s decision stands, it sets a binding precedent for lower tribunals and future cases, ensuring uniform application of the dependency requirement across similar contexts.

Moreover, this judgment may prompt revisiting of the EUSS provisions and their practical implementation, potentially leading to legislative amendments to address identified ambiguities and streamline the application process.

Complex Concepts Simplified

EU Settlement Scheme (EUSS)

The EUSS is a residency scheme established to protect the rights of EU, EEA, and Swiss citizens residing in the UK before the Brexit transition period ended on 31 December 2020, along with their family members. It offers two types of statuses:

• Pre-settled Status: Limited leave to remain, granted to individuals who have not yet reached five years of continuous residence in the UK.
• Settled Status: Indefinite leave to remain, granted to those who have lived in the UK for five continuous years.

Appendices EU and EU (Family Permit)

Within the EUSS framework:

• Appendix EU: Contains detailed rules governing the grant of leave to enter or remain (pre-settled or settled status) based on the applicant’s relationship to an EEA citizen.
• Appendix EU (Family Permit): Specifically facilitates the issuance of family permits to non-EEA family members of EEA citizens, allowing them entry into the UK to subsequently apply for settlement.

Dependency Requirement

Under both Appendices, certain family members, particularly parents and parents-in-law, must demonstrate their dependency on the EEA national sponsor to qualify for settlement rights. Initially, applications made before 1 July 2021 benefited from an assumption of dependency, simplifying the process. However, this concession was withdrawn post this date, necessitating explicit proof of dependency.

Leave to Enter vs. Entry Clearance

Entry Clearance: The initial permission granted to a non-EEA national to enter the UK, often facilitated through a family permit under Appendix EU (FP).
Leave to Enter: The formal permission allowing entry into the UK, which can be granted under different appendices based on the context and criteria met.

The distinction between these terms was central to the Rexhaj judgment, determining under which Appendix the leave to enter was granted and consequently, whether dependency needed to be demonstrated.

Conclusion

The Court of Appeal’s decision in Secretary of State for the Home Department v Rexhaj serves as a critical clarification of the dependency requirements for non-EEA family members seeking settlement in the UK under the EUSS. By affirming that leave to enter granted via Appendix EU (Family Permit) does not automatically fulfill the dependency requirement under Appendix EU, the judgment imposes stricter compliance obligations on applicants.

This ruling not only reinforces the necessity for clear and evidence-backed demonstrations of dependency but also delineates the operational boundaries between the different appendices within the EUSS. Consequently, applicants must navigate the application process with heightened attention to the specific criteria and legislative nuances governing their eligibility.

For legal practitioners and applicants alike, this judgment underscores the importance of meticulous adherence to procedural requirements and the critical examination of the legislative framework underpinning immigration rules post-Brexit. As the landscape of UK immigration law continues to evolve, such landmark cases will play a pivotal role in shaping the contours of residency rights and obligations for non-EEA family members.