Emambux v Secretary of State for the Home Department

Factual and Procedural Background

This appeal arises from the decision of the Upper Tribunal (Immigration and Asylum Chamber) dated 22 May 2023 concerning the obligations of the Secretary of State for the Home Department under the Withdrawal Agreement following the UK's exit from the EU. The appellant, hereafter "Appellant", had his appeal dismissed by the Upper Tribunal after the First-tier Tribunal had also dismissed his appeal against the Secretary of State's refusal to grant him leave to remain under the EU Settlement Scheme (EUSS).

The appeal was stayed pending the Court of Appeal’s decisions in related cases, Siddiqa v Entry Clearance Officer and Celik v Secretary of State for the Home Department. Permission to appeal was granted on whether the Secretary of State should have treated the Appellant’s application under the EUSS as one under the Immigration (European Economic Area) Regulations 2016 (the 2016 Regulations), with other grounds refused.

The Appellant had applied under the EUSS as the spouse of an EEA national but was refused on the basis that his marriage was not recognized under UK law and insufficient evidence was provided. He contended that the Secretary of State should have treated his application as one under the 2016 Regulations, should have informed him to apply under those regulations, and that a reference to the Court of Justice of the European Union (CJEU) was necessary regarding the Withdrawal Agreement provisions.

The Secretary of State argued that the Appellant's application was properly treated as an EUSS application, that there was no obligation to advise on alternative applications especially given prior unsuccessful 2016 Regulations applications, and that no CJEU reference was required.

Relevant background facts include the Appellant’s Mauritian nationality, his entry to the UK as a visitor in 2004, prior refused applications for leave to remain, and an Islamic marriage in London in 2015 to a French national, hereafter "Partner". The Appellant had made prior unsuccessful applications under the 2016 Regulations and had failed to provide recognized evidence of marriage in his EUSS application.

Legal Issues Presented

1. Whether the Secretary of State should have treated the Appellant’s application for leave to remain under the EUSS as an application under the 2016 Regulations.
2. Whether the Secretary of State was required to inform the Appellant, upon rejecting his EUSS application, to apply under the 2016 Regulations.
3. Whether a reference to the Court of Justice of the European Union was necessary on the interpretation of the Withdrawal Agreement provisions.

Arguments of the Parties

Appellant's Arguments

• The Secretary of State should have treated his EUSS application as one under the 2016 Regulations.
• The Secretary of State should have advised him to apply under the 2016 Regulations after rejecting his EUSS application.
• A reference to the CJEU was necessary to interpret provisions of the Withdrawal Agreement.
• The Appellant also raised the validity of his marriage and complained about his treatment by authorities.

Secretary of State's Arguments

• The Appellant’s application was properly made under the EUSS and did not qualify under the EUSS, nor was it an application under the 2016 Regulations.
• There was no obligation to advise the Appellant about other applications, especially given prior unsuccessful applications under the 2016 Regulations.
• Although the Secretary of State could refer questions to the CJEU, it was unnecessary here because the legal answer was clear.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Siddiqa v Entry Clearance Officer [2024] EWCA Civ 248	Clarified the interpretation of the Withdrawal Agreement and distinctions between EUSS and 2016 Regulations applications.	Used to confirm the correct approach to applications under the Withdrawal Agreement and that the Appellant did not meet criteria for extended family member rights.
Celik v Secretary of State for the Home Department [2023] EWCA Civ 921	Confirmed that extended family members in durable relationships are not covered under the Withdrawal Agreement’s family member definition.	Supported the conclusion that the Appellant did not qualify under the Withdrawal Agreement and EUSS.
Rahman v Secretary of State for the Home Department Case C-83/11 [2013] QB 249	Member states’ discretion to implement facilitation of entry and residence for extended family members under the Citizens’ Rights Directive.	Established the discretion the UK had in applying facilitation requirements under article 3 of the Directive.
Banger v Secretary of State for the Home Department Case C-89/17 [2019] 1 WLR 845	Obligation to confer advantages on third-country nationals with family relationships to Union citizens and requirement for extensive examination of personal circumstances.	Reinforced the need for justification in refusal decisions and judicial remedies.
Chenchooliah v Minister for Justice and Equality Case C-94/18 [2020] 1 WLR 1801	Scope of judicial remedies available under the Citizens’ Rights Directive.	Supported the principle that applicants must have access to effective judicial remedies.
Batool and others [2022] UKUT 219 (IAC)	Clarification of distinctions between close and extended family members and the Secretary of State’s guidance obligations.	Confirmed that the Secretary of State provided relevant information and was not required to treat applications differently than made.
Rhuppiah v Secretary of State for the Home Department [2018] UKSC 58; [2018] 1 WLR 5536	Applicants must make proper applications; the Secretary of State is not required to consider alternative applications.	Supported refusal based on the application made without obligation to assess other potential applications.
CS (Brazil) v Secretary of State for the Home Department [2009] EWCA Civ 480; [2009] 2 FLR 933	Role of the Secretary of State in assessing applications made.	Referenced to support the Secretary of State’s role in application assessment.
Macastena v Secretary of State for the Home Department [2019] EWCA Civ 1558; [2019] 1 WLR 365	Clarification of application assessment and Secretary of State’s duties.	Supported the principle that the Secretary of State is not obliged to investigate alternative applications.
Eco v Ahmed UT-2022-002804	Determination of the true nature of an application under the 2016 Regulations despite the form used.	Distinguished from the present case because the Appellant did not indicate an application under the 2016 Regulations.
Secretary of State for Work and Pensions v AT [2023] EWCA Civ 1307; [2024] CMLR 10	Interpretation of the Withdrawal Agreement and its domestic effect.	Used to explain interpretative principles and application of the Withdrawal Agreement.
R (Independent Monitoring Authority) v Secretary of State for the Home Department [2022] EWHC 3274 (Admin); [2023] 1 WLR 817	Analysis of article 18 of the Withdrawal Agreement and the UK’s “constitutive” scheme for residence status.	Clarified that rights must be conferred by grant of residence status, not merely by documentation.

Court's Reasoning and Analysis

The court analysed the nature of the Appellant’s application under the EUSS and distinguished it from applications under the 2016 Regulations. It emphasized that the Appellant made a clear application under the EUSS using the correct form and guidance, and that prior unsuccessful 2016 Regulations applications did not oblige the Secretary of State to treat the EUSS application as one under the 2016 Regulations.

The court rejected the contention that the Secretary of State had to advise the Appellant to apply under the 2016 Regulations, noting the Secretary of State’s role is to assess the application made, not to suggest alternative applications, especially where the Appellant had previously made and failed such applications.

Regarding the request to refer questions to the CJEU under article 158(1) of the Withdrawal Agreement, the court held it was unnecessary because the Appellant did not fall within the scope of Part Two of the Withdrawal Agreement. This was because he had not made an application for facilitation of entry and residence before the end of the transition period as required.

The court also addressed the Appellant’s claim about the validity of his marriage under English law, noting that permission to appeal on this point had been refused and that no evidence was before the court to recognize the Islamic marriage under English law.

Finally, the court dismissed allegations of improper treatment by authorities, finding no evidence supporting such claims and attributing procedural decisions to the Appellant’s conduct rather than improper actions by the Secretary of State or tribunals.

Holding and Implications

The appeal is dismissed.

The court upheld the Secretary of State’s refusal to treat the Appellant’s EUSS application as one under the 2016 Regulations and confirmed there was no duty to advise on alternative applications. No reference to the CJEU was required. The decision directly affects the parties by affirming the refusal of leave to remain under the EUSS. No new precedent was established beyond the application of existing legal principles to the facts of this case.