The Secretary of State for the Home Department v Have Rexhaj

This appeal concerns the relationship between the EU Settlement Scheme (“the EUSS”), which is contained in Appendix EU to the Immigration Rules (“Appendix EU”), and the provisions of the separate but related Appendix EU (Family Permit) (“Appendix EU (FP)”). The purpose of the EUSS is to give residence rights in the UK to EU, EEA and Swiss citizens (referred to together as “EEA citizens”) who had prior to the UK’s withdrawal from the EU (and from its associated treaties with the EEA and Switzerland) been living in the UK, and in some circumstances also to their family members. The rights in question take the form of either limited or indefinite leave to remain (“LLR” or “ILR”) – otherwise known as “pre-settled” or “settled” status – but where it is not necessary to distinguish I will refer to them compendiously as “settlement”.

The issue before us concerns the provisions of the EUSS which govern an application by a non-EEA citizen living outside the UK (“the applicant”) for settlement rights here by virtue of their relationship with an EEA-citizen son or daughter, or son- or daughter-in-law, (“the sponsor”) in the UK, and specifically whether it was, at the material time, a requirement that the parent show that they are dependent on the child. In most cases an application for settlement cannot be made from outside the UK, so the applicant first requires leave to enter. That means that they have to follow a two-stage process, the essentials of which are as follows:

The applicant in this case is Mrs Have Rexhaj, an Albanian citizen now aged 60 and a widow, and the sponsor is her daughter-in-law, Ms Laura-Marinela Prednicea, who is married to her son Urim. Ms Prednicea is a Romanian national who has acquired settlement rights under the EUSS. Mrs Rexhaj followed the two-stage process outlined above. Specifically:

On 12 April 2022 Mrs Rexhaj’s application was refused by the Secretary of State. In short, the refusal was on the basis that she had failed to show that she was dependent on Ms Prednicea, which the Secretary of State believed was a requirement of the EUSS.

Mrs Rexhaj appealed to the First-tier Tribunal under regulation 8 of the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 (“the 2020 Regulations”). Her primary case was that she was not, on the true construction of the relevant provisions of Appendix EU, required to show that she was dependent on Ms Prednicea (“the issue of law”); but she also contended that if there was such a requirement she had satisfied it (“the factual issue”). By a decision dated 12 October 2022 FTTJ Bennett found against her on both issues and dismissed her appeal.

Mrs Rexhaj appealed to the Upper Tribunal. As regards the issue of law, she contended that she was not subject to any dependency requirement. As regards the factual issue, she contended that the First-tier Tribunal’s findings were procedurally unfair because no opportunity had been given for oral evidence. By a decision dated 24 April 2023 the Tribunal (UTJ Stephen Smith and DUTJ Skinner) allowed her appeal on the issue of law. It also set aside the FTTJ’s findings of fact on the factual issue, on the basis that that was not a relevant inquiry given its conclusion on the legal issue. That meant that it did not have to decide whether the findings were otherwise challengeable, but at para. 23 of its decision it said that it “harboured grave doubts” over whether they were in fact open to the Tribunal as a matter of procedural fairness.

The Secretary of State appeals against the decision of the Upper Tribunal with the permission of Elisabeth Laing LJ granted on 30 October 2023. She (Footnote: ¹) has been represented before us by Ms Julia Smyth of counsel. Mrs Rexhaj has been represented by Mr Anthony Metzer KC, leading Ms Sanaz Saifolahi and Ms Nozima Rakhimjonova. In the Upper Tribunal the Secretary of State was represented by a Senior Home Office Presenting Officer and Mrs Rexhaj by Ms Saifolahi.

On 6 March 2024, barely a month before the hearing of the appeal, the AIRE Centre applied for permission to intervene. By order dated 8 March Elisabeth Laing LJ gave it permission to do so, both in writing and by short oral submissions. It has been represented by Ms Sonali Naik KC, Ms Bojana Asanovic and Ms Eva Doerr. As will appear, the issues sought to be raised by the AIRE Centre are quite different from those raised by the appeal. I will accordingly first address the latter and will return to the intervention at the end of the judgment.

In order to understand the issue on which the appeal depends it is necessary to identify the relevant UK legislation about leave to enter and entry clearance and to set out the relevant provisions of the two Appendices. I will also summarise the provisions of the Withdrawal Agreement between the EU and the UK which relate to the rights of persons in Mrs Rexhaj’s position, though in truth they are no more than a background to the specific issue which we have to decide.

It is convenient to deal with the Withdrawal Agreement first, although its conclusion post-dates some of the domestic legislation with which we are concerned.

The Withdrawal Agreement was concluded on 17 October 2019. By section 7A of the European Union (Withdrawal) Act 2018, inserted by the European Union (Withdrawal Agreement) Act 2020 (“the 2020 Act”), the provisions of the Agreement relating to the settlement rights of EU citizens and their family members have direct effect in UK law.

The Agreement provided for a transition period, ending at 11 p.m. on 31 December 2020, under which EU law would continue to apply in the UK. Until that date the rights of non-EU citizen family members were governed by the relevant terms of Directive 2004/38/EC (generally known as the Citizens Rights Directive), implemented as a matter of domestic law by the Immigration (European Economic Area) Regulations 2016 (“the 2016 Regulations”): I will refer to that as the “pre-withdrawal regime”.

Chapter 1 of Title II of Part 2 of the Withdrawal Agreement (which comprises articles 13-23) requires the parties, post-withdrawal, to confer rights of residence, including in some circumstances rights of permanent residence, on the categories of persons identified in (so far as relevant for our purposes) article 10.1.

Article 10.1 comprises six categories (“points” (a)-(f)). So far as the rights of EU citizens in the UK are concerned, the primary beneficiaries are identified at point (a) as “Union citizens who exercised their rights to reside in the United Kingdom in accordance with Union law before the end of the transition period and continued to reside there thereafter”.

“Family members” of such EU citizens are covered by point (e) under article 10.1, provided they satisfy one of conditions (i)-(iii). The relevant condition for our purposes is (ii), namely that:

The upshot of all that is that the Withdrawal Agreement does not require the UK to make settlement available to parents, or parents-in-law, of EU citizens resident in the UK post-withdrawal unless they are dependent on their sponsors. That was also the position under the pre-withdrawal regime.

Section 3 (1) of the Immigration Act 1971 establishes the basic rule that a person who is not a British citizen may not enter the UK unless given leave to enter in accordance with the Act itself or provisions made under it. Section 3A empowers the Secretary of State to provide by order for a system of entry clearance. The term “entry clearance” is defined in section 33 of the Act as follows:

The Immigration (Leave to Enter and Remain) Order 2000 (“the 2000 Order”) is made under the power conferred by section 3A of the 1971 Act. Part II of the Order is entitled “Entry Clearance as Leave to Enter”. Article 2, which has the identical heading, reads:

As appears from para. 3 above, the family permit granted to Mrs Rexhaj in November 2021 was a form of entry clearance. (Although at one point in his oral submissions Mr Metzer appeared to be questioning whether it complied with the requirements of article 3 of the Order and/or that its effect was qualified by article 5, he eventually confirmed that that was not his case.) Accordingly I need not set out any of the other articles referred to in article 2, though I should note that, consistently with the article itself, they use the terminology of entry clearance “having effect as leave to enter” – see, e.g., article 4 (3) and article 5.

Entry clearance is also the subject of paragraphs 25-30C of the Immigration Rules. Paragraph 25A expressly identifies the requirements of the 2000 Order, but I need not reproduce it here or refer to any of the other paragraphs.

The full title of Appendix EU is “Appendix EU: EU, other EEA and Swiss citizens and family members”. It was inserted into the Immigration Rules, with effect from 30 March 2019: the relevant Statement of Changes is HC 1919, dated 7 March 2019. Its purpose is, as I have said, to give effect to the UK’s obligations under the Withdrawal Agreement, although it was in some respects more generous. The Withdrawal Agreement had not of course been concluded at the date of its introduction, but the Government wanted to have a scheme in place well before the pre-withdrawal regime came to an end, so that those affected knew where they stood and there did not have to be a last-minute rush of applications: a draft of the Agreement already existed, and the shape of the likely deal as regards settlement rights for EU citizens and their family members was already well understood.

The original terms of the EUSS required revision to reflect the ending of the pre-withdrawal regime at the end of the transition period. That revision was effected by Statement of Changes HC 813, dated 22 October 2020, with effect from 11 p.m. on 31 December 2020. This was the version in force at the time that Mrs Rexhaj made her application. One of the changes required by the ending of the pre-withdrawal regime was the introduction of specific provision for non-EEA citizens outside the UK wishing to join EEA-citizen family members in the UK, described as “joining family members”. Under the previous regime persons in that category had been able to apply for a “family permit” under the 2016 Regulations, but that regime would of course cease to apply at the end of the transition period.

I should say that by Statement of Changes HC 1780, which took effect from 5 October 2023, the Secretary of State introduced amendments intended to reverse the effect of the decision of the Upper Tribunal in this case. Ms Smyth made it clear that that had been done out of abundance of caution, and I need not refer to the details of the changes here.

I set out below the provisions of Appendix EU specifically relating to joining family members applying for LLR, but I should first explain the structure of the Appendix. It is in six sections, headed respectively “Purpose” (paragraph EU1), “Requirements and procedure” (paragraphs EU2-EU8), “Valid application” (paragraphs EU9-EU10), “Eligibility for indefinite leave to enter or remain” (paragraphs EU11-EU13), “Eligibility for limited leave to enter or remain” (paragraphs EU14 and EU14A) and “Suitability” (paragraphs EU15-EU18), together with three Annexes, of which only the first, “Definitions”, is material for our purposes. The definitions are often extremely lengthy and difficult to navigate; where I have had to quote from them I have pared them to the minimum.

The first section, “Purpose”, has only a single paragraph, which reads as follows:

“EU1. This Appendix sets out the basis on which an EEA citizen and their family members … will if they apply under it, be granted indefinite leave to enter or remain or limited leave to enter or remain.”

The second section has four substantive paragraphs – EU2, EU2A, EU3, and EU3A – which set out the requirements for (a) indefinite and (b) limited “leave to enter or remain” either (1) as a joining family member of a relevant sponsor or (2) otherwise than as such a family member. (The remaining paragraphs are supplementary or procedural in character.) The paragraphs dealing with joining family members (introduced by HC 813) are EU2A and EU3A. We are concerned with paragraph EU3A, which sets out the requirements for limited leave. It reads:

The third and fourth sections set out the “eligibility requirements” for each of the four kinds of case identified at paragraphs EU2-EU3A. Paragraph EU14A is the relevant provision for cases falling under paragraph EU3A. It reads:

The phrase “joining family member of a relevant sponsor” is defined in Annex 1. The relevant part reads:

The terms “relevant sponsor” and “dependent parent” are both themselves defined in Annex 1. It is common ground that Ms Prednicea satisfies the former definition. As to “dependent parent”, the definition in its present form was introduced by HC 813 and includes some changes from the original version. The relevant parts read:

“(a)

the direct relative in the ascending line of a relevant EEA citizen … or of their spouse or civil partner; and

(b)

(unless sub-paragraph (c) immediately below applies) dependent on (as the case may be):

(i)

…; or

The specific issue in this appeal is whether sub-paragraph (c) (i) applies in Mrs Rexhaj’s case, and, more particularly, whether she was “previously granted leave to enter … under this Appendix”. I will come back to that question later. But I need to say something at this stage about sub-paragraph (b) (iii). Its primary effect is to impose (subject to sub-paragraph (c)) a requirement of dependency on the relevant sponsor (or their spouse or civil partner). However, that is qualified by the provision that dependency will be “assumed” if the application was made before 1 July 2021. (Footnote: ²) The background to this provision is as follows. In the original version of the definition, although there was a formal requirement that the parent be dependent on the sponsor, reflecting the position under the pre-withdrawal regime and the anticipated provisions of the Withdrawal Agreement, it was provided that dependency was to be “assumed”, with the result that the dependency requirement was in practice purely nominal. I will refer to this as “the dependency concession”. Ms Smyth explained that it reflected a decision by the Government that assessing evidence of dependency on a case-by-case basis would impose a disproportionate administrative burden on caseworkers. However, it was subsequently decided that the dependency concession should be withdrawn, and a substantive dependency requirement thus reinstated, following the end of the transition period, but that there would be a further six-month grace period, i.e. to the end of June 2021.

It will be necessary to refer to some other provisions of Appendix EU, but that is best done in the context of the specific points to which they are relevant.

Appendix EU (FP) was inserted into the Immigration Rules at the same time as Appendix EU – that is, on 30 March 2019. It too was altered by HC 813 with effect from 11 p.m. on 31 December 2020. It has two sections – “Purpose” (paragraphs FP1-FP2) and “Requirements and procedure” (paragraphs FP3-FP11) – and three Annexes, of which the first contains a number of definitions.

The “Purpose” section reads as follows:

The conditions of eligibility for such a permit are set out in paragraph FP6 (1), which reads (so far as material):

Mrs Rexhaj satisfied requirement (a) because she was a non-EEA citizen. As to requirement (b), “family member of a relevant EEA citizen” is defined in Annex 1. The definition includes the term “dependent parent”. The definition has three sub-paragraphs but I need not set them out. In summary:

Where a family permit is issued paragraph FP3 provides that it will be valid for “the relevant period”, defined (so far as relevant for our purposes) as six months from the date of decision, which is in practice the date of issue.

Those are the provisions on the basis of which Mrs Rexhaj made her application for a family permit on 21 June 2021. Since the application was made prior to 1 July 2021 the qualification to sub-paragraph (b) (i) (cc) applied and her dependency on Ms Prednicea was assumed. (It follows that, although she did to some extent address the question of dependency in the form and her covering letter – see para. 3 (1) above – she need not have done so.)

In the light of the basis on which the Upper Tribunal decided the appeal to it, our concern in this Court is simply with the legal issue, i.e. whether Mrs Rexhaj’s eligibility for leave to remain was subject to a dependency requirement. We are not concerned with the factual issue of whether she satisfied that requirement.

The Secretary of State’s case is straightforward. Mrs Rexhaj had to satisfy the definition of “joining family member of a relevant sponsor” for the purpose of paragraph EU14A (a) (i). That definition in turn required her to satisfy the definition of “dependent parent” in Annex 1. Sub-paragraph (b) (iii) of that definition explicitly incorporated a requirement that she be dependent on her sponsor: see paras. 29-30 above.

In response to that case Mrs Rexhaj relies on the exception to sub-paragraph (b) set out in sub-paragraph (c) (i) of the definition: see para. 29 above. She submits that the grant to her of leave to enter on 25 December 2021, pursuant to the entry clearance embodied in her family permit, meant that as at 2 January 2022 she had been “previously granted limited leave to enter or remain under this Appendix as a dependent parent”.

The Secretary of State contends that sub-paragraph (c) (i) does not apply because Mrs Rexhaj’s leave to enter was the result of the grant of the family permit, which was not “under this Appendix” – that is, Appendix EU – but under Appendix EU (FP).

The First-tier Tribunal Judge accepted the Secretary of State’s submission. The relevant part of para. 16 of his decision reads as follows:

The Upper Tribunal allowed Mrs Rexhaj’s appeal because it held that leave to enter had indeed, on a proper analysis, been granted under Appendix EU. I should set out its careful reasoning in full:

The issue revealed by the judgments below was described by both parties before us as one of “construction”. That description is potentially misleading. Both parties agree that “under this Appendix” means “under Appendix EU”. Rather, the key element in the Upper Tribunal’s reasoning, as it makes clear at the start of para. 14, is its analysis of the formal basis on which Mrs Rexhaj was granted leave to enter on 25 December 2021. That analysis does indeed involve interpreting the language of the two Appendices, but the real question is how they are to be understood in the context of the system of entry clearance laid down in the legislation reviewed above.

As to that, I agree with the Upper Tribunal’s succinct formulation of the central issue in para. 14 and with the “chronology of decisions” set out in para. 15. But I respectfully part company with its conclusion in paras. 16 and 17 that the basis of the grant of leave to enter on 25 December 2022 was not Appendix EU (FP) but Appendix EU. My reasons are as follows.

The starting-point is that it is common ground that Mrs Rexhaj’s entry clearance was granted under Appendix EU (FP): that is clear on the face of the permit itself (see para. 3 (2) above), and the grant of entry clearance is the avowed purpose of the Appendix. But, as Ms Smyth emphasised, the effect of article 2 of the 2000 Order is that such entry clearance as a matter of law also constitutes leave to enter (activated at the point that the grantee presents themselves at the border). That being so, it is on the face of it both natural and correct to describe Mrs Rexhaj’s leave to enter as having been granted “under” Appendix EU (FP). It may be right to say, as the First-tier Tribunal Judge did, that it was the result of “the joint effect of [Appendix EU (FP)] and the 2000 Order”; but the fact remains that the operative decision is the grant of entry clearance under Appendix EU (FP) and the 2000 Order takes effect as an automatic consequence of that decision. But in any case Appendix EU has nothing to do with it.

The reasoning of the Upper Tribunal in support of its contrary conclusion in paras. 16 and 17 has essentially three elements – (1) that the “focus” of Appendix EU (FP) is on the grant of entry clearance and that it makes no express provision for the grant of leave to enter; (2) that it is clear from paragraph FP2 that the purpose of the Appendix EU (FP) is “to operate in tandem with Appendix EU”; and (3) that Appendix EU does itself make express provision for the grant of leave to enter. I take those elements in turn.

As to (1), I do not believe that the fact that Appendix EU (FP) refers only to entry clearance is a matter of any significance given that it is a basic feature of UK immigration law, as explained above, that entry clearance and leave to enter go together like a horse and carriage. If you grant one the other follows as a matter of law. It would be bizarre for the Rules to provide for entry clearance to be granted under one Appendix and leave to enter under another. For the same reason, I do not think that the Secretary of State’s case can fairly be described as requiring words to be read into Appendix EU (FP), as suggested at para. 17 of the decision.

As to (2), the two Appendices are of course intended to work together, but they do so in a specific way and in accordance with their particular terms. As is clear from paragraph FP2, the purpose of Appendix EU (FP) is to enable would-be applicants for settlement rights under the EUSS to enter the UK in order to be able to make an application under Appendix EU; but that purpose does not require the kind of hybrid approach to the grants of entry clearance and leave to enter which the Tribunal’s approach involves.

As to (3), it is indeed the case that Appendix EU refers, not only in paragraph EU14A but also in paragraph EU1 and in relation to each of the four kinds of case identified at para. 26 above, both to the grant of leave to remain (which is the appropriate form of leave for persons already in the UK) and to the grant of leave to enter (which is the appropriate form of leave for those outside the UK). But it does not follow that the references to leave to enter are directed at the position of applicants who have received entry clearance under Appendix EU (FP): they are not the only kind of applicant who need leave to enter. In her helpful oral submissions Ms Smyth demonstrated that Appendix EU makes specific provision for the grant of leave to enter in certain very particular circumstances, which have nothing to do with Appendix EU (FP), and in no other circumstances. The explanation is rather complicated and I take it in stages.

It is rash to be completely confident when navigating such difficult waters, but Mr Metzer did not challenge Ms Smyth’s analysis, and so far as I can see it satisfactorily explains why, and the circumstances in which, Appendix EU provides for applications from outside the UK and thus for the grant of leave to enter as well as leave to remain. But even if there were some undetected problem about the explanation, 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. That being so, I do not see how it can be regarded as the basis of the leave to enter which Mrs Rexhaj was granted – still less so where the grant of entry clearance under Appendix EU (FP) coupled with the effect of article 2 of the 2000 Order constitutes a much more straightforward and obvious basis.

That analysis is given some further support by the terms of paragraph FP11 of Appendix EU (FP), which reads:

None of the foregoing directly accounts for why paragraph FP2 of Appendix EU (FP) refers to “entry clearance for the purposes of acquiring leave to enter or remain in the UK by virtue of Appendix EU”. That wording was not in fact specifically referred to by the Upper Tribunal, but Mr Metzer placed particular emphasis on it in his submissions, and I agree that it is problematic. Ms Smyth was unable to identify any circumstances in which a person who has received leave to enter consequent on the grant of leave to enter under Appendix EU (FP) would require leave to enter under Appendix EU; and she accepted that the reference to leave to enter was to that extent anomalous. In my view, however, this is no more than a piece of loose drafting. The purpose of Appendix EU as formally stated in paragraph EU1 is explicitly said to be to allow eligible applicants to obtain “leave to enter or remain” and that formula is, as we have seen, employed throughout its substantive provisions. In those circumstances it is not very surprising that the drafter of paragraph FP2 should simply have adopted it as a label when referring to Appendix EU, notwithstanding that the power to grant leave to enter would in fact have no application in the types of case with which Appendix EU (FP) was concerned. The same label is used elsewhere. For example, Ms Smyth referred us to section 17 (2) of Part 3 of the 2020 Act, which defines the term “relevant entry clearance immigration rules” as “any immigration rules which are identified in the immigration rules as having effect in connection with the granting of entry clearance for the purposes of acquiring leave to enter or remain in the United Kingdom by virtue of residence scheme immigration rules”: the definition of “residence scheme immigration rules” (in subsection (1)) includes Appendix EU. The fact that in the case of Appendix EU (FP) the label is wider than it need be cannot undermine what I believe to be the correct analysis by reference to the substantive provisions of the two Appendices in the context of the general law about the relationship between entry clearance and leave to enter.

For those reasons I cannot accept the reasoning at paras. 14-18 of the Upper Tribunal’s decision. For essentially the same reasons I do not agree with the Tribunal’s point at para. 19 that its approach “avoids rendering para. (c) [strictly, I think the reference is to sub-paragraph (c) (i)] in the definition of ‘dependent parent’ otiose”. As we have seen, there are circumstances in which a non-EEA citizen claiming ILR as a dependent parent (or parent-in-law) might previously have been granted LLR under Appendix EU, and the effect of sub-paragraph (c) (i) is that in those circumstances the dependency requirement is disapplied.

At the end of para. 19 of its decision the Upper Tribunal makes the point that its approach leads to a “coherent” result, in that Mrs Rexhaj would get the benefit of an assumption of dependency in the context of both her application for entry clearance under Appendix EU (FP) and her application for settlement under Appendix EU – both of which use the same definition of “dependent parent”. As to that, I agree that it follows from the Secretary of State’s analysis that, where an applicant makes their application for a family permit before 1 July 2021 but makes their application for settlement only after that date, they will not have to show dependency for the purpose of the former application but will have to do so for the latter. I can see that, since typically (Footnote: ³) the two applications are made as part of a single process, it may seem odd that different requirements should apply as regards the same criterion at different stages of that process.

I do not, however, believe that that oddity justifies disregarding the clear effect of the rules. It remains the case that the applications are made under different Appendices at different times (possibly many months apart (Footnote: ⁴)), and the application of different criteria is the result of the expiry of a time-limited concession (i.e. that dependency would be “assumed”) in the interval between the two applications. That does not involve any logical inconsistency such that the Secretary of State cannot have intended the rules to have that effect. It could perhaps be said that it would have been (to use the Upper Tribunal’s language) more “coherent” if she had made transitional provisions to the effect that, where dependency had been assumed for the purpose of the application for a family permit, it should be assumed also for the purpose of any application for settlement made during the currency of any consequent leave to enter; but that is not a sufficient reason for saying that the rules must be construed, contrary to their plain meaning, as if she had done so.

The Upper Tribunal did not suggest that the Secretary of State’s analysis produced unfairness, but during the course of the oral submissions there was some exploration of whether that was so. I am satisfied that it does not. The expiry of the concession, under both Appendices, on 30 June 2021 was explicit from the moment that they were introduced in October 2020. Applicants were able to make their choices on that basis. Specifically, they would know that applying for a family permit before 1 July 2021 without having to prove dependency would be of no real value unless they were also able to enter the UK and make their settlement application before that date. There might perhaps be cases where applicants who could not prove dependency applied for a family permit before 1 July, but too late for it to be issued in time for them to come to the UK until after that date, in the mistaken belief that all that mattered was the date of application for the permit. But the possibility that applicants might be prejudiced if they misunderstood the effect of the rules can have no bearing on how they are to be construed. (I would add that Mrs Rexhaj herself did not act in any such mistaken belief: when she made her entry clearance application she believed, albeit wrongly, that she did have to show dependency: see para. 3 (1) above.)

I am less reluctant than I otherwise would be to differ from the conclusions of the Upper Tribunal because it is clear that it did not have the benefit of the detailed analysis of the relevant provisions which we had from Ms Smyth, and at least two points in the submissions of the Presenting Officer were positively inconsistent with that analysis: see his acceptance, recorded at para. 18 of the decision, that “the judge’s reliance on the 2000 Order was something of a red herring” and the obviously unconvincing answer that he is recorded at para. 19 of the decision as having given to the “otiose” point. In her skeleton argument Ms Smyth frankly acknowledged these deficiencies in the presentation of the case below, referring to a probable “miscommunication between the Presenting Officer and the policy team”, but she submitted that the Secretary of State was not thereby precluded from advancing the correct analysis. That is in my view correct, and Mr Metzer did not seek to persuade us to the contrary. 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.

I should address two further arguments advanced by Mr Meltzer in support of Mrs Rexhaj’s case.

First, he relied on a copy of an email dated 19 May 2021 from the EU Settlement Scheme Resolution Centre to an applicant (not Mrs Rexhaj) which says:

Second, Mr Metzer referred us to para. 7.66 of the Explanatory Memorandum accompanying HC 1919, which is the Statement of Changes introducing Appendices EU and EU (FP) in their original form. The first bullet of the paragraph reads:

For completeness, I should mention that Ms Smyth drew our attention to a number of other provisions in Appendix EU which used the phrase “under this Appendix” in contexts where it could only be referring to Appendix EU; and likewise that where it intends to refer to Appendix EU (FP) it does so explicitly. That would be important if Mrs Rexhaj’s case were that the phrase “under this Appendix” in sub-paragraph (c) (i) means “under Appendix EU (FP)”. But, as we have seen, that was not the Upper Tribunal’s approach.

For those reasons, and subject to consideration of the intervention by the AIRE Centre, I would allow the Secretary of State’s appeal to this Court.

Para. 3 of Ms Naik’s written submissions on behalf of the AIRE Centre summarises the argument which it wished to advance before us as follows:

In her written submissions in response Ms Smyth advanced three arguments, which I summarise as follows:

At the conclusion of the submissions from the primary parties we invited Ms Naik to address us on the issue of whether she should be permitted to advance the discrimination argument, i.e. essentially Ms Smyth’s first two points. She did so and in fact in the course of doing so also made some outline submissions on the substantive merits of the argument. At the conclusion of her submissions we decided that she should not be allowed to advance the discrimination argument, for the second of the two reasons advanced by Ms Smyth. This Court has of course a discretion to allow new points to be taken on appeal, even by an intervener (at least where, as here, it is adopted by one of the parties). But it is axiomatic that that discretion should not be exercised where the new point cannot be determined in the absence of evidence on a contentious factual issue which was not adduced below. The justification of any inequality of treatment of the kind alleged by the intervener is plainly such an issue.

Ms Naik initially took the point that when, on 19 February 2024, the AIRE Centre had notified the parties of its intention to apply for permission to intervene, making clear the argument which it was intending to advance, the Treasury Solicitor had replied the next day saying that the Secretary of State did not oppose the application, stipulating only that she should be given a proper opportunity to respond. It may be that she took that course in a co-operative spirit, and with a view to the imminence of the hearing, but I am bound to say that I find it surprising that more time was not taken to consider the implications of the submissions which the AIRE Centre wished to make. If that had occurred, it is likely that the objections raised by Ms Smyth before us would have been raised from the start, and I do not think it can be assumed that permission to intervene would have been given. However, I do not believe that the Treasury Solicitor’s initial response can be treated as definitively waiving any objection to the admissibility of the AIRE Centre’s argument, and in the end Ms Naik did not submit that it did.

In those circumstances we need not consider Ms Smyth’s other two objections, and I prefer not to do so. I should say that I see real force in both, but Ms Naik outlined potential answers to them, and it would be wrong to express a concluded view on the basis of the limited argument that we heard.

Ms Naik submitted by way of fallback that, even if we were not prepared to entertain the discrimination argument ourselves, we should, if the appeal were allowed, encourage the Upper Tribunal on remittal to take a procedural route which would enable the argument to be considered in the context of the current proceedings. She did not suggest that we had any power to direct the Upper Tribunal to take such a step. She also accepted that it would be necessary for Mrs Rexhaj to seek permission to amend her grounds of appeal to the Upper Tribunal and/or to the First-tier Tribunal. I am not prepared to say anything by way of encouragement of such a course. The appeal is being remitted on a specific and distinct question about whether Mrs Rexhaj has proved dependency. The discrimination argument goes to the separate and prior question of whether there was a lawful requirement for her to do so. That is the question on which, on the hypothesis we are considering, she will have lost, and I cannot see how it would be right to allow her to revisit it simply because there has been a remittal on another issue.

As I have said, I would allow the Secretary of State’s appeal against the Upper Tribunal’s decision. That appeal relates only to what I have called the legal issue: see para. 5 above. It was common ground between counsel that if that were our decision the case should be remitted to the Upper Tribunal to determine Mrs Rexhaj’s challenge to the fairness of the decision of the First-tier Tribunal on the factual issue. However, in an e-mail to the Court shortly after the end of the hearing the Treasury Solicitor confirmed an indication by Ms Smyth in her oral submissions that the Secretary of State accepted that that decision was indeed procedurally unfair. In the light of that concession, it will be for the Upper Tribunal to decide whether itself to hear evidence and remake the decision or to remit the case to the First-tier Tribunal.

I agree.

I also agree.