Facilitation of Residence under Article 10(2) of the Withdrawal Agreement: Insights from Vasa v The Secretary of State for the Home Department ([2024] EWCA Civ 777)

Introduction

Case Title: Vasa v The Secretary of State for the Home Department ([2024] EWCA Civ 777)

Court: England and Wales Court of Appeal (Civil Division)

Date: July 10, 2024

This landmark case involves two Albanian nationals, Mr. Leonard Vasa and Mr. Hasanaj, who were admitted to the United Kingdom under the Immigration (EEA) Regulations 2016 without possessing the requisite family permits or residence cards. Their applications for pre-settled and settled status under the European Union Settlement Scheme (EUSS) were initially refused, leading to appeals that questioned the interpretation of the Withdrawal Agreement, specifically Article 10(2).

The central issues revolve around whether the admissions facilitated by passport stamps under the 2016 Regulations constitute 'facilitation of residence' under Article 10(2) of the Withdrawal Agreement, thereby entitling the applicants to status under the EUSS.

Summary of the Judgment

The Court of Appeal examined whether the admission of Mr. Vasa and Mr. Hasanaj to the UK via passport stamps under the Immigration (EEA) Regulations 2016 amounted to 'facilitation of residence' as per Article 10(2) of the Withdrawal Agreement. The Secretary of State argued that without formal applications or the appropriate documentation (family permits or residence cards), their admission did not facilitate residence in the statutory sense.

The Court held that, objectively, the immigration officers' decisions to admit the applicants allowed them to reside in the UK with their EEA family members. The passport stamps, despite not being formal family permits or residence cards, evidenced the facilitation of their residence. Consequently, the refusal to recognize these stamps under the EUSS constituted a breach of their rights under Article 18(1)(l)(iv) of the Withdrawal Agreement.

Both appeals were upheld, establishing that such admissions should be recognized within the framework of the Withdrawal Agreement, thereby entitling the applicants to pre-settled status.

Analysis

Precedents Cited

The judgment references several key cases to underpin its reasoning:

Benita Bagga (R v Secretary of State for the Home Department, ex p. Bagga [1991] 1 QB 485): Established that a date stamp alone does not confer indefinite leave to remain.
Celik v Secretary of State for the Home Department [2023] EWCA Civ 921: Provided the foundational legal framework for interpreting Article 10 of the Withdrawal Agreement.
Petrea v Ypourgou Esoterikon Kai Dioikitikis Anasygrotsis [2017] ECR 684: Clarified the declaratory nature of documents evidencing EU law rights.
Ram and Baidiki Ex-P Cases: Utilized to discuss the equivalence of different types of documentation for residence rights.

Legal Reasoning

The core legal question was whether admission under a passport stamp equates to facilitation of residence under Article 10(2) of the Withdrawal Agreement. The court deduced that, objectively, the stamps indicated permission to reside with EEA family members, fulfilling the criteria for 'facilitation of residence'. The court emphasized that the Withdrawal Agreement aims to protect the rights granted by both EU law and national legislation prior to the UK's departure from the EU.

Moreover, the Court rejected the Secretary of State's argument that the stamps lacked substance or were the result of erroneous application of the 2016 Regulations. It underscored that the decisions by immigration officers, whether erroneous or not, had legally facilitated the applicants' residence, thereby triggering protections under the Withdrawal Agreement.

Impact

This judgment sets a significant precedent for similarly situated non-EEA family members who were admitted to the UK under discretionary decisions rather than formal permits or residence cards. It clarifies that such admissions should be recognized as facilitation of residence, thereby entitling individuals to status under the EUSS. This broadens the interpretation of residence facilitation, ensuring that informal or discretionary admissions are not disregarded in legal proceedings.

Future cases involving non-EEA family members with similar entry methods will reference this judgment to argue for recognition of their residence rights under the Withdrawal Agreement, regardless of the absence of formal documentation.

Complex Concepts Simplified

Withdrawal Agreement Articles

Article 10(2) of the Withdrawal Agreement: Protects the residence rights of extended family members of EEA nationals who were residing in the UK before the end of the transition period, provided their residence was facilitated under national law.

Article 18(1)(l)(iv): Allows for the creation of a new residence status that reflects rights under the Withdrawal Agreement, requiring evidence of facilitated residence.

Facilitation of Residence

This term refers to any official decision or action by immigration authorities that grants an individual permission to reside in the UK, even if it is not accompanied by formal documentation like a residence card or family permit.

European Union Settlement Scheme (EUSS)

A UK government scheme established post-Brexit to allow EU, EEA, and Swiss citizens and their family members to continue living in the UK, granting them pre-settled or settled status based on their residency duration.

Relevant Documents under Appendix EU

These include family permits, residence cards, or registration certificates issued under the EEA Regulations 2016, which serve as evidence of an individual's right to reside in the UK as an extended family member of an EEA national.

Conclusion

The Vasa v The Secretary of State for the Home Department judgment significantly expands the interpretation of 'facilitation of residence' within the context of the Withdrawal Agreement. By recognizing admissions facilitated through passport stamps as valid under Article 10(2), the court ensures that non-EEA family members previously residing in the UK are afforded protections and rights under the Settlement Scheme.

This decision underscores the judiciary's role in safeguarding the rights of individuals affected by Brexit, ensuring that discretionary immigration decisions are not rendered void in subsequent legal frameworks. The judgment promotes fairness and consistency in immigration law, providing a clearer pathway for non-EEA family members to secure their residency rights in the UK.

Lawyers, policymakers, and affected individuals will find this judgment instrumental in navigating the complexities of post-Brexit immigration law, setting a robust precedent for future cases involving residency rights under the Withdrawal Agreement.