Tajamal Hazoor Randhawa v Secretary of State for the Home Department

This is an application for permission to appeal against a decision of the Upper Tribunal dismissing an appeal by the applicant, Tajamal Randhawa, who seeks to challenge a decision of the respondent, the Secretary of State for the Home Department, refusing to grant him limited leave to remain, what is sometimes called pre-settled status, as the brother of an EEA national pursuant to Appendix EU to the Immigration Rules or what is known as the European Union Settlement Scheme ("EUSS").

In brief, the applicant is a national of Pakistan. His brother has Italian nationality. The applicant joined his brother in Italy. He was granted a residence card by the Italian authorities which entitled him to reside in Italy. They both travelled to the United Kingdom on 12 December 2019. The applicant produced his passport and the Italian residence card, and, to put it neutrally, was physically allowed to pass border controls at Manchester Airport. It is by that means that he arrived in the United Kingdom. He subsequently applied for limited leave to remain under the EUSS. That was refused on a number of occasions. He finally applied again in January 2022 and that was refused on 22 March 2022, and it is that decision that the applicant challenged on appeal before the First-tier Tribunal. The First-tier Tribunal dismissed the appeal. The Upper Tribunal found there was an error in that tribunal's reasoning and set aside that decision. It then went on to make the decision itself, and it decided that the applicant did not have any entitlement to residence in the United Kingdom and that therefore the Withdrawal Agreement between the European Union and the United Kingdom did not apply to him and did not assist him. Those are the two grounds of appeal brought by Mr Malik on behalf of the applicant in this case.

Mr Malik's argument proceeds in a number of steps. First, he submits that a person who is a non-EEA national but who has been granted a residency card by another state and resides in that other state is entitled to admission under regulation 11 of the 2016 regulation. Secondly, he submits that admission to the United Kingdom implies the facilitation of residence within the United Kingdom. Thirdly, he submits that puts the applicant within the scope of article 10(2) of the Withdrawal Agreement and entitles him, if necessary, to rely on article 18 of the Withdrawal Agreement because he has a document issued by the British authorities for the purposes of article 18(1)(l). He submits, as part of his third step, that the waving through of the applicant at Manchester Airport constitutes the adoption or acceptance and, therefore, the issuing of a decision by the United Kingdom authorities that they were facilitating residence or accepting that the residence card would be sufficient to entitle him to come to this country.

Mr Malik has other arguments about the interpretation of the withdrawal agreement. He relies on the decision in Leonard Vasa v The Secretary of State for the Home Department [2024] EWCA Civ 777, [2025] 1 WLR 39. Ms Elliot for the Home Secretary relies on exactly the same case for exactly the opposite reason, pointing out that the parties in that case had accepted that a residence card granted by another EU member state did not bring with it any rights to reside.

This is only the hearing of an application for permission. There may well be formidable difficulties in Mr Malik establishing each of the three steps that he needs in order to succeed on this appeal. However, there is a realistic prospect of him succeeding on that, and therefore he should be granted permission. That does not mean the applicant will win and it does not mean the applicant will lose. It means there has to be a full argument before the Court of Appeal. They will hear the arguments of Mr Malik on behalf of the applicant and they will hear the arguments for the Secretary of State, and then the court will have to decide which of them, the applicant or the Secretary of State, is correct. As I have granted permission to appeal, it is both unnecessary and would be unhelpful of me to express any view on the steps Mr Malik would have to go through in order to persuade the court his client should succeed. It is sufficient for present purposes that I grant him permission to appeal on the two grounds set out in the notice of appeal.