Court of Appeal finds breach of Withdrawal Agreement in “mystery” stamp case

It’s the return of the “mystery” stamp! Although the Court of Appeal has come to a different conclusion than the Upper Tribunal did, holding that while a passport stamp did not amount to a relevant document for Appendix EU purposes, the protection of the Withdrawal Agreement was engaged because of the stamp and that it had been breached here. The case is Vasa v The Secretary of State for the Home Department [2024] EWCA Civ 777.

Background

Mr Vasa is an Albanian national born in Greece on 24 February 2004. On 13 September 2020 he travelled to the UK with his older brother who is a Greek national who had been living in the UK since 25 June 2018. At the British border control in Paris, his passport was stamped with the words “Admitted to the United Kingdom under the Immigration (EEA) Regulations 2016”.

On 15 September 2020 Mr Vasa made an application to the EU Settlement Scheme. This was refused on 23 October 2020 because he did not have a family permit or a residence card issued under the Immigration (EEA) Regulations 2016. He did not appeal, but with the assistance of legal representatives he submitted another application to the EU Settlement Scheme on 17 March 2021. This was refused for the same reason as the first application.

Mr Vasa appealed this refusal and the First-tier Tribunal dismissed the appeal. The Upper Tribunal then allowed his appeal on an erroneous basis, as agreed by both parties. The Home Secretary appealed that decision to the Court of Appeal.

The second appellant, Mr Hasanaj is also an Albanian national, who had lived in Italy since around 2014 with his sister who is an Italian national. He travelled to the UK with her and arrived at Stansted on 26 March 2019 where his passport was stamped with the same wording as in Mr Vasa’s case.

Mr Hasanaj applied to the EU Settlement Scheme on 29 June 2021 and the application was refused on 5 January 2022 because he did not have a family permit or residence card. The First-tier Tribunal allowed his appeal and the Upper Tribunal then allowed the Home Secretary’s appeal on 11 December 2022. Mr Hasanaj appealed to the Court of Appeal.

Both appellants argued “that admission pursuant to the stamp in their respective passports amounted to facilitation of residence within the meaning of Article 10(2) of the Withdrawal Agreement and refusal to grant pre-settled status under the Settlement Scheme involved a breach of their rights under Article 18 of the Withdrawal Agreement or was disproportionate”.

The Home Secretary’s position was “that the references to “facilitated” and “facilitation” in Article 10(2) and (3) of the Withdrawal Agreement meant that a person had to have made an application and been granted the right to enter and reside in the United Kingdom pursuant to the 2016 Regulations”. It was submitted that the stamps did not amount to facilitation of residence.

The Court of Appeal

The explanation provided by the Home Secretary was a bit more detailed than the “shrouded in mystery” response in the Upper Tribunal in Allaraj, and was that:

the stamps in question were intended for use in cases where a non-EEA family member (within the meaning of Article 2 of the Directive) of an EEA national exercising their rights under EU law to reside in the UK presented themselves at a border without a family permit (the use of which was not mandatory) and satisfied the immigration officer that they were eligible to be admitted. She submitted that the stamps were wrongly used in these two cases though it was not possible on the available evidence to establish how the mistake had occurred.

The Court of Appeal held that decisions granting lawful entry had been made for the appellants, but the real issue was what rights were granted along with entry, and to what extent those rights were protected under the Withdrawal Agreement. The issues were summarised as follows:

(1) whether the actions of an immigration officer allowing Mr Vasa and Mr Hasanaj to come to the United Kingdom amounted to facilitation of residence within the meaning of Article 10(2) of the Withdrawal Agreement; and if so,
(2) whether refusal of pre-settled status under the EU Settlement Scheme would involve a breach of rights of Mr Vasa and Mr Hasanaj under the Withdrawal Agreement?

The Court of Appeal determined that the appellants had been granted lawful entry to the UK but that the passport stamps were not a “relevant document” under Appendix EU. The court then turned to the Withdrawal Agreement, where article 10(2) brings family members within its scope if their residence “was facilitated by the host state … before the end of the transition period”.

The court held that their residence had been facilitated, as decisions had been made by public officials that the appellants were allowed to enter and live in the UK. Article 18(l)(1)(iv) of the Withdrawal Agreement then provides for extended family members to be covered on production of a document facilitating their residence in the UK, which in this case was the passport stamp.

The court concluded that there had been a breach of the appellants’ rights under the Withdrawal Agreement and that their appeals should have been allowed.

Conclusion

I still have many questions about the stamp. Mainly how many EUSS applications have been rejected because of the use of this stamp and is the Home Office now taking steps to remedy this? Are there people who have been rejected on this basis and since left the UK? It seems entirely possible.