Shaikh v The Secretary of State for the Home Department

Factual and Procedural Background

The Appellant is a national of Pakistan who applied for leave to remain under the EU Settlement Scheme (EUSS). The Respondent refused the application on 14 September 2023 ("the Decision"). The Appellant appealed to the First-tier Tribunal (FTT), which allowed the appeal in determination 2 on the basis that the Decision breached the United Kingdom's obligations under the Withdrawal Agreement (WA). The Respondent appealed to the Upper Tribunal (UT), which in determination 3 held that the FTT had materially erred in law in determination 2 and remade the decision, dismissing the Appellant's appeal. The Appellant sought permission to appeal to the Court of Appeal from determination 3; this judgment is the Court of Appeal's decision on that application.

Key factual points, as stated in the opinion: the Appellant (referred to in the opinion as "A") entered the United Kingdom in August 2019 with a family permit issued after an earlier FTT determination (determination 1). The Appellant's younger sibling (Individual 1) is an Irish citizen whose 18th birthday fell on 22 November 2020 (the "relevant date"). The family permit expired on 7 February 2020. The Appellant made multiple applications under the EUSS, some unsuccessful for procedural reasons, and a further application on 4 August 2023. The UT concluded that any derivative right based on the Appellant's role as a Chen carer ceased when Individual 1 reached 18, and dismissed the Appellant's appeal.

Legal Issues Presented

1. Whether the UT erred in law in holding that the Appellant did not fall within Article 10(1)(e)(i) of the Withdrawal Agreement (the Chen-derived carer right) as at 31 December 2020.
2. Whether Article 10(2), Article 10(3) or Article 10(5) of the Withdrawal Agreement applied to the Appellant's circumstances, given the grant of a family permit in 2019 and later applications under the EUSS.
3. Whether any derivative right of residence under Chen ceased when the EEA-national child (Individual 1) reached 18, or in exceptional circumstances continued to a later age.
4. Whether the FTT's earlier determination and the grant of a family permit estopped the Respondent from denying that the Appellant had been residing in accordance with EU law.

Arguments of the Parties

Appellant's Arguments (as presented by Attorney Saifolahi)

• The Appellant did not need to fall within Article 10, but if she did: she did not cease to reside in accordance with EU law when Individual 1 reached 18 and would not have done so until Individual 1 was 21.
• The Respondent was estopped by the earlier FTT determination (determination 1) and by the later grant of leave from denying that the Appellant was residing in accordance with EU law.
• It was irrational to refuse leave to the Appellant when the Respondent had granted leave to the Appellant's sibling (Individual 2) in comparable circumstances.
• The Respondent had not relied on the Article 10 argument in the FTT and could not rely on it in the UT.
• The grant of the 2019 family permit, together with the FTT findings, made it arguable that Article 3(2) of the Citizens' Rights Directive applied and thus Article 10(3) of the WA could apply.

Respondent's Arguments (as presented by Attorney Laird)

• The Appellant was not within Article 3(2)(a) of the Directive (neither limb (a) nor (b)); her application was not an application for facilitation and was not made or granted on that basis.
• Article 10(2) and Article 10(3) of the WA therefore do not apply; an application for facilitation means an application for an EU family permit or residence card before the end of the relevant period (relying on Celik and Emambux).
• The family permit's effect cannot be treated as evidence of lawful residence beyond its expiry; the Appellant made no qualifying application for facilitation before the relevant date.

Table of Precedents Cited

Court's Reasoning and Analysis

The judge reviewed the procedural history and the legal framework (Citizens' Rights Directive 2004/38/EC and Articles 9 and 10 of the WA). Both parties relied on Celik for the interpretation of Articles 10(2) and 10(3). The court analysed determination 1 and the circumstances of the 2019 family permit, noting the FTT's reasoning in determination 1 was obscure as to the legal basis for allowing the prior appeal.

The court considered whether the Appellant could rely on Article 10(1)(e)(i) (the Chen-derived carer right) and concluded that, applying Chen, any derivative right would ordinarily cease when the EEA-national child reached 18. The UT's finding that such a right ceased on 22 November 2020 was applied. The court also considered whether the family permit or earlier FTT determination estopped the Respondent or amounted to evidence that Article 10(3) or Article 10(5) applied. The court accepted the Respondent's submission that the Appellant did not fall within Article 3(2)(a) of the Directive and had not made or been granted an application for facilitation before the end of the relevant period; consequently Articles 10(2), 10(3) and 10(5) did not apply to her case.

The court noted the unusual factual matrix and the obscurity of the basis for the earlier FTT decision granting the family permit, and held that there was nothing in the facts to show the Appellant had been within Article 3(2) when she was not. The court treated the matter as not raising a wider issue of principle or practice.

Holding and Implications

PERMISSION TO APPEAL DISMISSED

Direct effect: the appellant's application for permission to appeal is dismissed and the UT's determination remaking the decision dismissing the Appellant's appeal stands. The court concluded no broader principle should be established from these unusual facts and did not certify a point of wider importance.