Court of Appeal says that application made to EU Settlement Scheme was correctly rejected

The Court of Appeal has upheld the Home Secretary’s decision to refuse an application made under Appendix EU by an extended family member who had not first obtained a residence document under the Immigration (EEA) Regulations 2016. The case is Emambux v Secretary of State for the Home Department [2024] EWCA Civ 1459.

Background

The appellant is a Mauritian national who entered the UK as a visitor in February 2004 and was later granted leave to remain as a student then as a student nurse. Further applications were refused and his leave expired on 30 November 2009.

His partner is a French national and they have a child together. In 2017 the appellant applied for a residence card as the family member of an EEA national. This was rejected on 12 June 2017 for failure to provide a valid passport or identity card. A second application was rejected on 29 June 2017 for non-payment of the application fee.

On 5 November 2020 the appellant applied under the EU Settlement Scheme as a spouse of an EEA national. When asked for evidence of a marriage certificate and registration, he sent the Home Office a copy of his Islamic marriage certificate, a letter from his partner and a statement.

On 11 December 2020 the application for leave to remain under the EU Settlement Scheme was refused on the basis that he had not provided the required evidence of family relationship. As he and his partner did not have a legally recognised marriage, the appellant was considered an extended family member which means that he was required to obtain a relevant document under the 2016 regulations before applying to the EU Settlement Scheme. The deadline for applying under the 2016 regulations was 31 December 2020.

The appellant sought administrative review of the decision but the refusal was upheld. The First-tier Tribunal dismissed the appeal on 18 August 2021 and the Upper Tribunal dismissed the further appeal on 22 May 2023.

The Court of Appeal

The Court of Appeal granted permission to appeal on one ground which was whether the Home Secretary should have treated the application made under the EU Settlement Scheme as an application made under the Immigration (European Economic Area) Regulations 2016. This was split into three issues:

(1) the Secretary of State should have treated the application for leave to remain by Mr Emambux as an application under the 2016 Regulations; (2) the Secretary of State should have told Mr Emambux, when rejecting his application under the EUSS, to make an application under the 2016 Regulations; (3) there should be a reference to the Court of Justice of the European Union (CJEU) on the effect of provisions of the Withdrawal Agreement.

The Home Secretary’s response to each of these points was:

(1) Mr Emambux made an application under the EUSS when he did not qualify under the EUSS, and it was not an application under the 2016 Regulations; (2) the Secretary of State had no obligation to advise Mr Emambux about what applications to make, particularly in circumstances where Mr Emambux had made past, unsuccessful, applications under the 2016 Regulations; and (3) although there was power to refer certain issues concerning the Withdrawal Agreement to the CJEU, it was not necessary to do so, because the answer to Mr Emambux’s case was clear.

Reference was made to Siddiqa v Entry Clearance Officer [2024] EWCA Civ 248 (our write up is here) and Batool and others (other family members: EU exit) [2022] UKUT 219 (IAC) (our write up is here), neither of which was good news for those who applied to the EU Settlement Scheme without first getting a document under the 2016 regulations.

On the first point, the Court of Appeal said that the appellant applied under the EU Settlement Scheme and “his application was correctly refused”. On the second point, the court said that:

under domestic law the Secretary of State determines applications and is not bound to advise applicants of applications that can be made. Further, in the particular circumstances of this case, Mr Emambux was maintaining that he was in fact married to an EEA national, a point that he pursued unsuccessfully before the FTT and UT, and a point on which he was refused permission to appeal to the Court of Appeal. Mr Emambux had in fact made two previous applications under the 2016 Regulations which had been rejected. Mr Emambux had not challenged those decisions.

The court also declined to make a reference to the Court of Justice of the European Union as the appellant had not made an application for facilitation of entry and residence before the end of the transition period and so he did not fall within the scope of the Withdrawal Agreement.

Conclusion

This is another case involving an unrepresented appellant where early legal advice, if easily accessible, would very likely have led to a better outcome for him.