Withdrawal Agreement Article 10: “Facilitation” Protection Requires an Article 3(2) Directive Application (Not a Chen-Derivative Route)

1) Introduction

Shaikh v The Secretary of State for the Home Department [2026] EWCA Civ 590 is a Court of Appeal (Civil Division) decision of Lady Justice Elisabeth Laing refusing permission to appeal from the Upper Tribunal (Immigration and Asylum Chamber).

The appellant (“A”), a Pakistani national, sought leave to remain under the EU Settlement Scheme (EUSS). The Secretary of State refused her 2023 EUSS application. The First-tier Tribunal (FTT) allowed A’s appeal, finding a breach of the UK’s obligations under the Withdrawal Agreement (WA), but the Upper Tribunal (UT) set that aside and dismissed A’s appeal after remaking the decision.

The dispute centred on whether A was within the personal scope of Article 10 WA by the end of the transition period (31 December 2020), given that A’s asserted EU-law basis for residence was a derivative right associated with an EU citizen child (a “Chen” scenario), and the child turned 18 shortly before the transition end.

2) Summary of the Judgment

The Court of Appeal refused permission to appeal. It accepted the Secretary of State’s submission that A could not invoke Article 10(2) or Article 10(3) WA because her historic family permit route and FTT decision could not properly be characterised as “facilitation” under Article 3(2) of Directive 2004/38/EC. As A did not fall within Article 3(2) “on any view”, Article 10(2)/(3) did not apply; and without that footing, Article 10(5) WA also could not assist.

Lady Justice Laing also held the case did not raise a wider issue of principle or practice, so the second appeals test was not met.

3) Analysis

3.1 Precedents Cited

  • Chen v Secretary of State for the Home Department C-200/02 [2005] QB 325 (“Chen”)
    The case forms the background label for the type of derivative residence argument being advanced (a non-EU primary carer presence being “necessary” to avoid depriving an EU citizen child of effective residence). The UT treated the relevant derivative right as generally ceasing when the EU citizen child turns 18 (absent exceptional circumstances). Although the Court of Appeal’s permission decision ultimately turned on Article 10(2)/(3) WA, it accepted the UT had addressed the Chen framework and that A’s case was not rescued by re-casting it as a facilitation case.
  • Vasa v Secretary of State for the Home Department [2024] EXCA Civ 777; [2025] 1 WLR 39 (“Vasa”)
    A relied on Vasa to argue that the grant of an EEA family permit (and associated tribunal findings) constrained the Secretary of State from later denying her EU-law residence status. The UT distinguished Vasa, including on the basis that a family permit could not evidence facts beyond its expiry. The Court of Appeal’s reasoning proceeded on a more fundamental point: even if a permit existed, it could not transform A into an Article 3(2) applicant where she simply was not one.
  • Celik v Secretary of State for the Home Department [2023] EWCA Civ 921; [2023] IMM AR 5 (“Celik”)
    Celik was central to structuring the WA analysis. The Court of Appeal reiterated that: Article 10(2) WA concerns applications made and granted before transition end; and Article 10(3) WA concerns applications made before transition end but granted after. Critically, the decision also supported the proposition that Article 10’s “facilitation” route is tied to the Directive’s Article 3(2) machinery—i.e., a person must actually be an extended family member seeking facilitation, not someone relying on a different EU-law status.
  • Emambux v Secretary of State for the Home Department [2024] EWCA Civ 1459
    Cited (via the Secretary of State’s argument) for the proposition that an “application for facilitation” in this WA context means an application such as an EU family permit or residence card made before the end of the transition period. This reinforced the conclusion that the 2023 EUSS application could not supply the missing pre-transition facilitation foundation.

3.2 Legal Reasoning

The permission application narrowed to whether A could bring herself within Article 10(3) WA (and related provisions) by pointing to a pre-transition family permit and earlier FTT outcome, even though her case in the UT had been pursued on the basis of a Chen-type derivative right rather than as an Article 3(2) extended family member whose residence had been “facilitated”.

The Court of Appeal accepted the Secretary of State’s submission that the predicate condition for Article 10(2)/(3) was missing: A’s application was not made as an Article 3(2) request for facilitation. It followed that:

  1. No Article 3(2) status, no Article 10(2)/(3) pathway: A could not use the existence of a family permit (or an opaque tribunal allowance) to re-label the route as Article 3(2) facilitation if, on the facts, she “simply was not” within Article 3(2).
  2. Article 10(5) could not be engaged as a fallback: The Secretary of State’s argument (accepted by the Court) was that without an Article 10(2)/(3) footing, A could not invoke Article 10(5) to require a broader examination of family circumstances to create scope where the definitional gateway was not met.
  3. Second appeals test not satisfied: The facts were described as unusual and not raising a wider issue of principle or practice, so permission was refused on that additional basis.

A notable feature is that the Court treated the “what was the legal nature of the pre-transition route?” question as decisive. The earlier FTT determination’s rationale was “wholly obscure”; that obscurity did not help A, because it could not supply a legal category (Article 3(2) facilitation) that the underlying facts did not support.

3.3 Impact

Although this is a permission decision, it reinforces a strict “classification” approach to WA Article 10:

  • Applicants cannot retrospectively convert a derivative-right narrative (such as a Chen-related residence history) into an Article 3(2) facilitation case to access Article 10(2)/(3) protections.
  • Historic grants (family permits and tribunal outcomes) will not, without more, operate as a legal acknowledgement that the person fell within Article 3(2) if that was not the route actually engaged.
  • The decision aligns with the post-Celik line: WA rights are tightly tethered to pre-transition EU-law categories and procedures, and late reliance on EUSS applications will not cure missing pre-transition “facilitation” steps.

4) Complex Concepts Simplified

Withdrawal Agreement (WA) Article 10
Defines who is protected by the citizens’ rights part of the WA. Protection depends on falling within specified categories (e.g., certain family members, or those whose residence was “facilitated” under EU law), with timing conditions keyed to the end of the transition period (31 December 2020).
Article 3(2) of Directive 2004/38/EC (“extended family members” and “facilitation”)
Covers certain non-core family members whose entry/residence a Member State must “facilitate” following an individual assessment under national implementing rules. In UK practice, this was typically pursued via EEA family permit/residence documentation under the EEA Regulations.
“Chen” derivative right
A form of EU-law residence derived from an EU citizen child’s rights, where the non-EU adult’s presence is necessary to ensure the child can effectively reside. It is not the same legal route as Article 3(2) facilitation.
Second appeals test
For permission to appeal to the Court of Appeal from the UT, it is generally necessary to show an important point of principle or practice, or some other compelling reason. The Court held that threshold was not met.

5) Conclusion

[2026] EWCA Civ 590 confirms that WA Article 10(2)/(3) protections linked to “facilitation” require a genuine Article 3(2) Directive basis. A pre-transition family permit (and an unclear tribunal allowance) cannot be used to re-characterise a case into Article 3(2) where the applicant’s route was, in substance, a different EU-law claim (here, a Chen-type derivative claim). On that footing, the Court refused permission to appeal and held no wider point of principle arose.