Vasa v The Secretary of State for the Home Department

Factual and Procedural Background

These two appeals concern two individuals, referred to as Appellant 1 and Appellant 2, who entered the United Kingdom after immigration officers stamped their passports with the phrase "Admitted to the United Kingdom under the Immigration (EEA) Regulations 2016". The central dispute involves the nature and extent of the rights granted by these stamps and how those rights relate to applications under the European Union Settlement Scheme ("the Settlement Scheme").

Appellant 1, born in 2004 and a national of a non-EEA country, was admitted at a border control in Paris in September 2020. He applied twice under the Settlement Scheme for pre-settled or settled status but was refused both times due to lack of requisite documentation, specifically a family permit or residence card under the 2016 Regulations. The First-tier Tribunal dismissed his appeal, but the Upper Tribunal allowed an appeal on an erroneous factual basis. The Secretary of State appealed that decision.

Appellant 2, born in 1983 and also a national of a non-EEA country, was admitted to the UK at an airport in March 2019 with his sister, an EU national. He applied under the Settlement Scheme in June 2021 but was refused for failure to produce a family permit or residence card, which was no longer possible due to the repeal of the 2016 Regulations. The First-tier Tribunal allowed his appeal, but the Upper Tribunal reversed that decision, holding that the passport stamp did not constitute facilitation of residence under the Withdrawal Agreement. Appellant 2 appealed this decision.

Both appellants argued that their admission pursuant to the passport stamps amounted to facilitation of residence under Article 10(2) of the Withdrawal Agreement and that refusal of pre-settled status violated their rights under Article 18 or was disproportionate. The Secretary of State contended that the stamps did not confer rights to reside and that the appellants had not made the required applications under the 2016 Regulations. The Secretary of State also argued that the immigration officers lacked the legal power to admit the appellants or were mistaken in doing so, rendering their residence unlawful. An intervener, the AIRE Centre, submitted that if the appellants were not lawfully admitted, their presentation at the border should be treated as an application for facilitation of residence under Article 10(3) of the Withdrawal Agreement, requiring the Secretary of State to enable proper determination of their applications.

Legal Issues Presented

1. Whether the actions of immigration officers admitting the appellants to the United Kingdom amounted to facilitation of residence within the meaning of Article 10(2) of the Withdrawal Agreement.
2. If so, whether refusal of pre-settled status under the Settlement Scheme breached the appellants' rights under the Withdrawal Agreement.

Arguments of the Parties

Appellants' Arguments

• Facilitation of residence under Article 10(2) of the Withdrawal Agreement can occur through admission by immigration officers, not only via formal applications for family permits or residence cards under the 2016 Regulations.
• The passport stamps evidencing admission constitute facilitation sufficient to satisfy the evidential requirements of Article 18(1)(l)(iv) of the Withdrawal Agreement.
• Even if the immigration officers acted outside their powers or erroneously, the admission nonetheless constituted facilitation of residence.
• Alternatively, the appellants should be treated as having been granted leave to remain under section 4 of the Immigration Act 1971, though case law suggests a date stamp alone is insufficient for indefinite leave.

Secretary of State's Arguments

• The terms "facilitated" and "facilitation" in Article 10(2) and (3) are legal terms of art requiring an application under the 2016 Regulations; neither appellant made such applications.
• The passport stamps merely recorded admission to enter the UK and did not confer any right to reside.
• The immigration officers lacked the legal authority to admit the appellants under the 2016 Regulations or acted mistakenly, so their admission cannot constitute facilitation of residence.
• The stamps were intended for non-EEA family members who satisfied eligibility criteria without a family permit, but their use in these cases was erroneous.
• Consequently, the appellants were unlawful immigrants without lawful residence rights, justifying refusal under the Settlement Scheme.

Intervener's Arguments (The AIRE Centre)

• If the Secretary of State establishes that the appellants were not lawfully admitted, their presentation at border controls should be treated as applications for facilitation of residence under Article 10(3) of the Withdrawal Agreement.
• EU law principles, including proportionality and effective judicial remedies, require the Secretary of State to enable the appellants to complete or perfect those applications and give proper decisions.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Celik v Secretary of State for the Home Department [2023] EWCA Civ 921	Sets out detailed legal framework for EU free movement law, Withdrawal Agreement, and the Settlement Scheme.	Used to explain the legal context and prior interpretation of facilitation and rights under the Withdrawal Agreement.
Secretary of State for the Home Department v Rahman (Case C-83/11) [2013] QB 249	Defines scope and meaning of facilitation of residence under Directive 2004/38/EC.	Supports interpretation that facilitation requires an application and grant of rights under national legislation.
SM (Algeria) v Entry Clearance Officer (Case C-129/18) [2019] 1 WLR 5505	Clarifies criteria for facilitation and judicial remedies under EU law.	Referenced regarding the rights of extended family members and their residence facilitation.
Banger v Secretary of State for the Home Department (Case C-89/17) [2019] 1 WLR 845	Emphasizes the right to effective judicial remedies against refusals.	Supports the need for procedural fairness in residence rights decisions.
R v Secretary of State for the Home Department, ex p. Ram [1979] 1 WLR 148	Relates to immigration admission and facilitation principles.	Relied upon by appellants to argue admission by immigration officers can constitute facilitation.
R v Secretary of State for Home Affairs, ex p. Baidiki (1977) 121 Sol. Journal 443	Similar to Ram, concerning immigration admission.	Also relied upon to support appellants' submissions on facilitation by admission.
R v Secretary of State for the Home Department, ex p. Bagga [1991] 1 QB 485	Clarifies that a date stamp alone does not equate to indefinite leave to remain.	Used to temper appellants' alternative argument regarding leave under the Immigration Act 1971.
Petrea v Ypourgou Esoterikon Kai Dioikitikis Anasygrotsis (Case C-184/16) [2017] ECR 684	Documents evidencing EU law rights are declaratory of those rights.	Distinguished by the court as not applying to extended family members deriving rights from national law.
Smith v East Elloe RDC [1956] AC 736	Presumption of validity of public decisions unless quashed.	Supports the court's view that immigration officers' decisions remain valid absent challenge.
Boddington v British Transport Police [1999] AC 143	Principle that validity of administrative decisions can be challenged in collateral proceedings.	Distinguished as not applicable here, since the challenge is to refusal decisions, not to admission decisions.
Siddiqa v Entry Clearance Officer and others [2024] EWCA Civ 248	Clarifies that border presentation is not equivalent to an application for a family permit.	Used to reject the argument that presentation at border constitutes an application under the 2016 Regulations.
Allaraj v Secretary of State for the Home Department [2023] UKUT 002777	Interprets the requirement that facilitation must be in accordance with national legislation.	Referenced as an example of a contrary approach to the one adopted in this case.

Court's Reasoning and Analysis

The court began by examining the acts of the immigration officers admitting the appellants at the border controls. It found that the appellants presented themselves seeking permission to come and live in the UK with their respective EU-national family members. The immigration officers made decisions to admit them, evidenced by passport stamps referencing admission under the 2016 Regulations.

The court considered what rights these decisions objectively conferred. It concluded that a reasonable person would understand the stamps to mean that the appellants were allowed to enter and live in the UK with their family members. The court rejected the Secretary of State's argument that admission was limited to physical entry without any right to remain, noting the impracticality and context of the admissions.

The court acknowledged that the stamps did not constitute the formal documents required under the Settlement Scheme (family permits or residence cards under the 2016 Regulations), and the appellants had not applied for such documents. Therefore, the stamps did not satisfy Appendix EU evidential requirements.

However, the court found that under Article 10(2) of the Withdrawal Agreement, extended family members whose residence was facilitated by the host state before the end of the transition period remain within its scope. The court held that the immigration officers' decisions amounted to facilitation of residence under domestic law, even if the officers were mistaken or lacked authority. The stamps thus constituted the relevant documents envisaged by Article 18(1)(l)(iv) of the Withdrawal Agreement.

Refusal by the Secretary of State to accept these stamps as evidence of residence facilitation was a breach of the appellants' rights under the Withdrawal Agreement. The court rejected the Secretary of State's submission that facilitation requires an application and grant under the 2016 Regulations, explaining that the Withdrawal Agreement protects rights granted by relevant national authorities, regardless of the correctness of domestic law application.

The court further noted that the decisions of the immigration officers had never been challenged or quashed and thus remained valid and effective. It declined to consider whether the appellants had leave under the Immigration Act 1971, as the admission was not expressed as leave to enter under that Act.

Finally, the court dismissed the argument that presentation at the border constituted an application for facilitation under Article 10(3) of the Withdrawal Agreement, referencing recent authority that formal application procedures are required.

Holding and Implications

The court allowed the appeals. It held that the immigration officers' decisions to admit the appellants constituted facilitation of residence within the meaning of Article 10(2) of the Withdrawal Agreement. Consequently, the Secretary of State was required to accept the passport stamps as valid evidence of residence facilitation under Article 18(1)(l)(iv) of the Withdrawal Agreement.

The refusal to grant pre-settled status on the basis that the appellants lacked family permits or residence cards issued under the 2016 Regulations was a breach of their rights under the Withdrawal Agreement. The court upheld the decision of the Upper Tribunal in Appellant 1's case on different grounds and allowed Appellant 2's appeal.

The direct effect of this decision is to entitle the appellants to have their residence status recognized under the Settlement Scheme based on the passport stamps evidencing their admission. The court did not establish new precedent beyond the interpretation of the Withdrawal Agreement in these circumstances, nor did it disturb the validity of the immigration officers' decisions.