Secretary of State for the Home Department v Rexhaj

Factual and Procedural Background

This appeal concerns the relationship between the EU Settlement Scheme ("the EUSS") and the related Appendix EU (Family Permit) ("Appendix EU (FP)"). The EUSS grants residence rights in the UK to EU, EEA, and Swiss citizens and, in some cases, their family members, through limited or indefinite leave to remain ("LLR" or "ILR"), collectively referred to as "settlement". The issue is whether a non-EEA citizen living outside the UK applying for settlement rights by virtue of their relationship with an EEA-citizen son or daughter, or son- or daughter-in-law (the "sponsor") in the UK, was required to show dependency on the child at the material time.

The process involves two stages: first, applying under Appendix EU (FP) for an EU Settlement Scheme Family Permit ("family permit") to obtain entry clearance; second, after entry to the UK, applying under Appendix EU for leave to remain.

The appellant ("the Applicant") is a 60-year-old Albanian widow, and the sponsor is her daughter-in-law, a Romanian national with settlement rights under the EUSS. The Applicant applied for a family permit on 21 June 2021, relying on financial support from her sponsor. The permit was granted on 15 November 2021, valid for six months with multiple entries allowed. She arrived in the UK on 25 December 2021 and applied for leave to remain on 2 January 2022. The application was refused on 12 April 2022 by the Secretary of State for failure to prove dependency, which was believed to be a requirement under the EUSS.

The Applicant appealed to the First-tier Tribunal (FTT) on both the legal issue of whether dependency was required and the factual issue of whether she was dependent. The FTT dismissed the appeal on 12 October 2022. She then appealed to the Upper Tribunal (UT), which allowed her appeal on the legal issue and set aside the FTT's factual findings on procedural fairness grounds. The Secretary of State was granted permission to appeal the UT decision.

The AIRE Centre was permitted to intervene shortly before the hearing to raise a new argument concerning alleged discrimination in the scheme's evidential requirements.

Legal Issues Presented

1. Whether the Applicant's eligibility for leave to remain under the EUSS was subject to a requirement to show dependency on the sponsor.
2. Whether leave to enter granted via a family permit under Appendix EU (FP) constitutes leave granted "under Appendix EU" for the purposes of disapplying the dependency requirement.
3. The admissibility and merits of the discrimination argument raised by the intervener concerning the differential evidential treatment of dependent parents applying before and after 30 June 2021.

Arguments of the Parties

Secretary of State's Arguments

• The Applicant must satisfy the definition of "joining family member of a relevant sponsor" in paragraph EU14A(a)(i), which requires meeting the definition of "dependent parent" in Annex 1, including the dependency requirement in sub-paragraph (b)(iii).
• The exception in sub-paragraph (c)(i) does not apply because the Applicant's leave to enter was granted under Appendix EU (FP), not Appendix EU.
• The family permit grants entry clearance under Appendix EU (FP), which by operation of the Immigration (Leave to Enter and Remain) Order 2000 ("the 2000 Order") constitutes leave to enter, but this leave is not "under Appendix EU".
• The Upper Tribunal's reasoning conflates the purposes of the two Appendices and ignores the legal effect of the family permit as entry clearance under Appendix EU (FP).
• The discrimination argument raised by the intervener is outside the scope of the appeal, lacks jurisdictional basis under the 2020 Regulations, requires evidence for justification, and is misconceived on the basis of the Withdrawal Agreement and justifications for differential treatment.

Applicant's Arguments

• The Applicant is not required to show dependency under the true construction of the relevant provisions of Appendix EU.
• The grant of leave to enter on 25 December 2021 pursuant to the family permit means she was "previously granted limited leave to enter or remain under this Appendix" (i.e., Appendix EU), disapplying the dependency requirement.
• The First-tier Tribunal's factual findings were procedurally unfair due to lack of oral evidence opportunity.
• Relied on an internal Home Office email indicating that a family permit is classed as leave to enter and dependency need not be evidenced if entry was made while the permit was valid.
• Adopted the intervener's discrimination argument but made no substantive submissions on it.

Intervener (The AIRE Centre) Arguments

• The Secretary of State's decision to withdraw the evidential concession for dependency for joining family members applying after 30 June 2021, while allowing relaxed evidential provisions for dependent parents already in the UK before 31 December 2020, violates the EU principle of equality/non-discrimination and requires disapplication of the restrictive provisions of Appendix EU.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court analysed the statutory and regulatory framework, including the Withdrawal Agreement, Immigration Act 1971, the 2000 Order, and the Immigration Rules Appendices EU and EU (FP). It noted that entry clearance granted under Appendix EU (FP) constitutes leave to enter by operation of the 2000 Order.

The central question was whether the leave to enter granted upon arrival in the UK pursuant to the family permit was granted "under Appendix EU" for the purposes of disapplying the dependency requirement under sub-paragraph (c)(i) of the definition of "dependent parent".

The Court agreed with the Secretary of State that the family permit was granted under Appendix EU (FP), not Appendix EU. Appendix EU (FP) governs entry clearance (family permits), while Appendix EU governs leave to remain or enter granted to persons already qualifying under the EUSS. Appendix EU does not provide for the general grant of leave to enter to applicants who have entry clearance under Appendix EU (FP).

The Upper Tribunal's contrary reasoning was rejected as it conflated the purposes of the two Appendices and ignored the legal effect of the 2000 Order. The Court found no basis to interpret the rules as if leave to enter granted on arrival following a family permit was granted under Appendix EU.

The Court acknowledged that this leads to an arguably inconsistent situation where dependency was assumed for the family permit application made before 1 July 2021 but must be proven for the subsequent application for limited leave to remain if made after that date. However, this inconsistency arises from the expiry of a time-limited concession and does not justify disregarding the clear wording of the rules.

The Court also considered but rejected the Applicant's reliance on internal Home Office communications and the explanatory memorandum, finding these did not affect the legal construction.

Regarding the discrimination argument raised by the intervener, the Court declined to admit it due to lack of opportunity for evidence and the argument being outside the appeal's scope and jurisdiction of the First-tier Tribunal.

Holding and Implications

The Court ALLOWED the Secretary of State's appeal against the Upper Tribunal's decision on the legal issue.

The direct effect is that the Applicant's leave to enter granted via the family permit was under Appendix EU (FP), not Appendix EU, and therefore she was subject to the dependency requirement in her application for limited leave to remain under Appendix EU. The case is remitted to the Upper Tribunal to reconsider the factual issue of dependency and the procedural fairness challenge.

No broader precedent altering the interpretation of the EUSS was established beyond the resolution of this specific construction issue. The discrimination argument was not considered on its merits and remains unresolved.