No Re-characterisation Duty under the Withdrawal Agreement: Commentary on Emambux v Secretary of State for the Home Department [2024] EWCA Civ 1459

1. Introduction

The Court of Appeal’s decision in Emambux v Secretary of State for the Home Department introduces an important clarification at the intersection of EU withdrawal law and United Kingdom immigration practice. The judgment confirms that, where an applicant wrongly chooses the EU Settlement Scheme (“EUSS”) route instead of the former European Economic Area Regulations 2016 (“2016 Regulations”) route, the Secretary of State for the Home Department (“SSHD”) is not obliged either to (i) treat the EUSS application as if it were an application under the 2016 Regulations, or (ii) prompt or shepherd the applicant towards the correct route.

The appeal was brought by Mr Emambux, a Mauritian national, who had applied under the EUSS on the footing that he was the spouse of an EEA national (his French partner). Both the First-tier Tribunal (“FTT”) and the Upper Tribunal (“UT”) rejected that claim. Permission to appeal was granted on a narrow issue: whether the SSHD should have re-characterised his application or offered guidance to make it under the 2016 Regulations.

The Court’s answer—“No”—cements the line of authority begun in Batool, carried through Celik and Siddiqa, and now given an emphatic finality, owing to the Supreme Court’s refusal of permission in the earlier cases.

2. Summary of the Judgment

The Court of Appeal (Lewis, Singh and Moylan LJJ) dismissed the appeal in its entirety.
Issue 1 – Re-characterisation: An application expressly made under the EUSS cannot and need not be treated as an application under the 2016 Regulations. The applicant chose the wrong scheme; the SSHD’s task is limited to assessing the application made.
Issue 2 – Duty to Advise: Neither the Withdrawal Agreement (WA) nor domestic public-law principles impose a duty on the SSHD to alert an applicant to alternative immigration routes.
Issue 3 – Reference to the CJEU: Article 158 WA references are exceptional; none was required because Mr Emambux fell outside WA Part II (“Citizens’ Rights”).
Efforts to relitigate the validity of the Islamic marriage and allegations of mistreatment were rejected as outside the scope of the permitted grounds.

3. Detailed Analysis

3.1 Precedents Cited and Their Influence

Celik v SSHD [2023] EWCA Civ 921 – Established that extended family members without a pre-Brexit facilitation decision fall outside Article 10 WA. The Court relied heavily on Celik’s interpretation of Article 10(3) and (5), especially the requirement of a proper pre-transition application under domestic law.
Siddiqa v ECO [2024] EWCA Civ 248 – Clarified that an online EUSS family-permit form cannot morph into an EEA family-permit form absent explicit indication. Emambux adopts Siddiqa’s analysis of the GOV.UK application pathway.
Batool & Ors (UT) [2022] UKUT 219 (IAC) – Emphasised the clear bifurcation between EUSS and 2016 Regulations within the GOV.UK portal.
Eco v Ahmed (UT) 2022 – Demonstrated the exception when an applicant explicitly signals reliance on the 2016 Regulations despite using the EUSS interface. The absence of such signalling in Emambux was decisive.
CJEU authorities on “facilitation” for extended family members: Rahman (C-83/11), Banger (C-89/17) and Chenchooliah (C-94/18) – Cited to explain the flexible but member-state-determined nature of Article 3(2) Citizens’ Rights Directive (CRD).
Domestic public-law cases on “no duty to chase shadows”: Rhuppiah [2018] UKSC 58, CS (Brazil) [2009] EWCA Civ 480 and Macastena [2019] EWCA Civ 1558 – Reinforce the principle that the SSHD deals with applications as presented.

3.2 Legal Reasoning

Dual Schemes and Constitutive Nature. Under Article 18 WA the UK opted for a “constitutive” system: residence rights crystallise only after a successful application under the designated domestic framework (EUSS or, pre-transition, the 2016 Regulations). Choosing the wrong framework is, therefore, fatal.
Article 10 WA Interpretation. Following Celik, extended family members are protected only if “residence is being facilitated” pursuant to a pre-transition application under national law. Mr Emambux lodged no such application; two failed 2017 attempts under the 2016 Regulations could not be revived.
No Duty to Re-characterise. Domestic immigration law is application-driven. Regulation 21 of the 2016 Regulations makes compliance with specified procedures mandatory. Absent textual ambiguity or mixed applications (as in Eco v Ahmed), the SSHD’s remit is limited to the chosen route.
No Advisory Duty. Article 18(1)(o) WA (‘competent authorities shall assist’) was argued to impose an advice duty. The Court, however, read it in context: it operates within a properly made application; it does not obligate authorities to redirect or correct an improperly framed claim.
Reference to the CJEU. Article 158 WA permits references within eight years where interpretation of Part II is “necessary”. Because Mr Emambux was outside Part II, the prerequisite necessity was absent.

3.3 Impact of the Decision

The decision shuts the last realistic door for applicants seeking to salvage defective EUSS filings by asking the SSHD or the courts to transmogrify them into 2016-Regulations applications. Consequences include:

Administrative Clarity: Home Office case-workers can confidently confine themselves to the confines of the application presented, reducing litigation over alleged advisory omissions.
Litigation Strategy: Claimants and advisers must ensure the correct route is pursued from the outset; attempts to rely on Article 18(1)(o) or proportionality to cure route-selection errors are unlikely to succeed.
Definitive Post-Brexit Landscape: With Celik, Siddiqa and now Emambux, the Court of Appeal has comprehensively mapped the boundary of Withdrawal-Agreement rights for extended family members. Absent Supreme Court intervention (refused) or legislative change, the law is settled.

4. Complex Concepts Simplified

EUSS (EU Settlement Scheme): A post-Brexit UK immigration route enabling EU/EEA citizens and certain family members resident in the UK by 31 Dec 2020 to secure “settled” or “pre-settled” status.
2016 Regulations: Domestic Regulations implementing the EU free-movement directive. Pre-transition, they allowed both direct and extended family members to obtain residence cards.
Direct vs Extended Family Member: Direct (Article 2 CRD): spouse, civil partner, dependent children <21, dependent parents.
Extended (Article 3 CRD): wider relatives or unmarried partners in a “durable relationship,” whose admission must be “facilitated” by the host state.
Constitutive v Declaratory System: Constitutive: rights exist only after a successful application (UK’s choice).
Declaratory: rights exist independently; documentation merely confirms them.
Article 18(1)(o) WA – “Assistance”: Requires authorities to help applicants within the chosen procedure to avoid errors. It does not compel the authority to redirect applicants to another legal regime.
Article 158 WA Reference: A narrow eight-year window allowing UK courts to request CJEU rulings on Part II WA questions—only where the applicant is within the scope of Part II.

5. Conclusion

Emambux delivers the last brick in a trilogy confirming that post-transition applicants bear full responsibility for selecting the correct immigration pathway. The Court’s clear articulation—that the SSHD has no duty to re-characterise or advise—provides welcome certainty for administrators and applicants alike. For legal practitioners, the case serves as a cautionary tale: meticulous route selection and compliance with procedural minutiae remain paramount in the United Kingdom’s post-Brexit immigration regime.