Court of Appeal resolves ambiguity about assumed dependency in EU Settlement Scheme

The court has held that a parent granted a family permit under the EU Settlement Scheme based on assumed dependency must show actual dependency to get leave to remain when applying after 1 July 2021. That decision is Secretary of State for the Home Department v Rexhaj [2024] EWCA Civ 784.

Background

Mrs Rexhaj is 60-year-old Albanian citizen who relied on her daughter-in-law, Mrs Prednicea, a Romanian national with leave under the EU Settlement Scheme, as her sponsor.

On 21 June 2021, Mrs Rexhaj applied from Albania for a family permit under Appendix EU (Family Permit). In the form she stated that she was relying on financial support from the sponsor, though it is not clear whether any evidence of this was provided.

On 15 November 2021, the application was successful and she was granted a six-month vignette to join her daughter in the UK.

She entered the UK on 25 December 2021 and on 2 January 2022, applied under the EU Settlement Scheme for leave to remain as a dependant of her daughter-in-law. She returned to Albania and has not been back to the UK since.

On 12 April 2022, Mrs Rexhaj’s application was refused on the ground that she had failed to show she was dependent on her sponsor.

She appealed the refusal to the First-tier Tribunal on the basis that she was not required to prove dependency and alternatively, if that was not the case, then she had satisfied the requirement. On 12 October 2022, the First-tier Tribunal dismissed her appeal on both issues.

Mrs Rexhaj appealed to the Upper Tribunal, again on the basis that she was not subject to a dependency requirement. The Upper Tribunal agreed and on 23 April 2023, allowed her appeal on this point. It also set aside the First-tier Tribunal’s factual finding that she did not satisfy the dependency requirement, on the basis that the requirement did not apply to her.

Court of Appeal

The main issue before the court was the interpretation of the Appendix EU rules at the time of Mrs Rexhaj’s leave to remain application. Specifically, sub-paragraph (c) of the definition of “dependent parent” in Annex 1:

Effectively, prior to June 2021, dependency was assumed and so no evidence had to be produced to prove dependency in these types of applications. On 1 July 2021, the Home Office changed the rules so that where an application was made after this date, dependency was no longer assumed and to succeed, an applicant would have to provide evidence that satisfied the Home Office that the dependency requirement was met.

However, the effect of sub-paragraph (c)(1) was that if the applicant was applying after 1 July 2021 but was previously granted leave under “this Appendix”, they could rely on the previous assumption of dependency without having to prove it. So if Mrs Rexhaj was in fact granted leave “under this Appendix” – that is to say, Appendix EU – when she was granted a family permit, the requirement to prove dependency would not apply to her.

The court held that although Appendix EU and Appendix EU (Family Permit) work in tandem to some degree, they are separate appendices of the immigration rules and so it cannot be said that a grant under Appendix EU (Family Permit) constitutes a grant under Appendix EU:

51. … the fact remains that Appendix EU only provides for leave to enter in limited and specific circumstances where the applicant can satisfy the requirements of the provisions which I have set out. What it certainly does not do is provide for the generality of non-EEA citizens outside the UK to be able to apply for leave to enter or, more particularly, for persons who have obtained entry clearance under Appendix EU (FP) to be able to do so…

52. That analysis is given some further support by the terms of paragraph FP11 of Appendix EU (FP), which reads:
“Annex 3 applies in respect of the revocation of an entry clearance that was granted under this Appendix, and of the cancellation and curtailment of leave to enter granted by virtue of having arrived in the UK with an entry clearance that was granted under this Appendix.”

I need not summarise the terms of Annex 3. What matters for our purposes is that it makes provision not only about the revocation of the entry clearance granted by a family permit but also about the cancellation and curtailment of any leave to enter granted by virtue of having arrived in the UK with such an entry clearance. If the Upper Tribunal were right that leave to enter in such a case were granted under Appendix EU, one would expect the provisions in question to appear there and not in Appendix EU (FP).

For that reason, Mrs Rexhaj cannot be said to have been granted leave “under this Appendix” (meaning Appendix EU) as she was actually granted leave under Appendix EU (Family Permit). The effect of this is that she is not exempt from Appendix EU’s post-1 July 2021 requirement to evidence her dependency on her sponsor.

Poor drafting

Appendix EU and Appendix EU (Family Permit) are infamous for being terribly drafted. Ask any immigration lawyer about the definitions section and watch their eyes glaze over with the kind of the pain and trauma that is usually only seen in war veterans and dogs experiencing their first Guy Fawkes night.

Not the first time, the court has agreed:

58. […] This is not, unfortunately, this Court’s only experience of poor liaison between those with policy responsibility for drafting and applying the Immigration Rules and the presenting officers and counsel who have to explain them in the tribunals or the courts. The potential for confusion and inconsistency is all the greater where, as in the case of the EUSS, the drafting of the Rules is particularly complex and difficult to understand.

Conclusion

The effect of this decision is that anyone who was granted a family permit on the basis of assumed dependency who after 1 July 2021 applied or is applying for leave under Appendix EU will have to satisfactorily evidence their dependency. However, this will not apply to applicants who were previously granted leave under Appendix EU when they apply for settled status, as they can continue to rely on assumed dependency.

This is not a particularly surprising decision, though anything that clarifies the EU Settlement Scheme rules is always a good thing for both applicants and practitioners.