Secretary of State for the Home Department v Elson Allaraj

This appeal concerns a stamp which was placed in Mr Allaraj’s passport by an Immigration Officer at the juxtaposed control in Coquelles, France on 5 December 2020. It stated that he was:

“Admitted to the United Kingdom under the Immigration (EEA) Regulations 2016”

The stamp was placed there because the Immigration Officer was satisfied that Mr Allaraj was in a durable relationship with an EEA national. A judge of the First-tier Tribunal reached the same conclusion about the relationship and allowed Mr Allaraj’s appeal against the Secretary of State’s subsequent decision to refuse his application for pre-settled status under the EU Settlement Scheme. The Secretary of State appealed against that conclusion.

The Secretary of State contended that the judge had failed to consider whether his finding about the relationship entitled Mr Allaraj to any relief on the only two grounds of appeal which were available to him in an appeal of this nature. The Upper Tribunal (UTJ Frances and DUTJ Davey) allowed the Secretary of State’s appeal. It found that the judge had failed to consider whether Mr Allaraj held a ‘relevant document’, so as to entitle him to succeed under the Immigration Rules or whether his residence was being facilitated before the United Kingdom’s withdrawal from the European Union, so as to bring him within the personal scope of the Withdrawal Agreement. It ordered that the decision on the appeal should be remade in the Upper Tribunal following a further hearing.

The Secretary of State’s submission, in broad outline only at this stage, is that the stamp was not a relevant document and that it could not indicate that Mr Allaraj’s residence was ever facilitated. She submits that the Immigration Officer had no power to admit him to the United Kingdom under the Immigration (European Economic Area) Regulations 2016 (“the EEA Regulations” and that the placing of the stamp in the passport was ultra vires the powers conferred upon him.

We are told that there are many other similar cases concerning what Mr Deller described as ‘a stamp which is regularly encountered, but the use of which is shrouded in mystery’. Regardless of the conclusions we reach on this appeal, we record at the outset our clear view that this is a most unsatisfactory state of affairs which has placed people such as Mr Allaraj in a position which is characterised by a lack of legal certainty which is anathema to an orderly system of immigration control.

Mr Allaraj is an Albanian national who was born on 25 January 1999. He entered the United Kingdom as an Unaccompanied Asylum-Seeking Child in 2013. He achieved a number of qualifications in a range of subjects. He learned how to speak English and worked in construction. His asylum claim was refused and he remained unlawfully thereafter. In January 2020, he met a Czech national called Tereza Gojicova and a relationship began. They started living together later that year and subsequently became engaged.

On 5 December 2020, Mr Allaraj and his fiancée arrived at Coquelles. They had travelled from the Czech Republic by coach, having spent some time with Ms Gojicova’s family. They sought entry to the United Kingdom. There is a reasonably detailed account of what followed in a contemporaneous note which was made at the port. Mr Allaraj was given a notice by ‘BFO N.Culver’ which required him to submit to further investigation. We should note that BFO stands for ‘Border Force Officer’. That role does not feature in the Immigration Acts but we understood it to be common ground before us that this Border Force Officer was a person appointed as an Immigration Officer under paragraph 1 to Schedule 2 to the Immigration Act 1971.

Further checks made by the Immigration Officer revealed Mr Allaraj’s prior unlawful residence in the UK. Mr Allaraj was recorded as ‘seeking entry to the UK today as a family member of an EU/EEA national’. He and his fiancée were interviewed separately. They gave precisely identical accounts of their lives together, stating, for example, that she had a tattoo of a heart on her left foot and that she had an eight year old dog called Gloria. They both stated that Mr Allaraj enjoyed playing football and running but that he did not support a football team. The Immigration Officer was (understandably) satisfied that ‘the passengers are in a genuine relationship’. He recorded what happened next in the following way:

Mr Allaraj and his fiancée therefore proceeded on their way and resumed living together in a rented flat near Croydon. The next significant event was that Ms Gojicova was granted pre-settled status under the Settlement Scheme on 15 January 2021.

Mr Allaraj applied for leave to remain under the EU Settlement Scheme on 15 May 2021. His application was promptly acknowledged by the Secretary of State on the same day.

The couple married in Walthamstow on 4 August 2021. They had intended to do so previously but had been unable to do so because of the restrictions imposed by the pandemic.

The Secretary of State refused Mr Allaraj’s application on 22 December 2021. The basis upon which she did so may be summarised as follows:

As we have already recorded, the appellant’s appeal to the First-tier Tribunal was allowed. Judge Farrelly concluded that the ‘key issue’ was whether the relationship was durable. Because he was satisfied that it was, he allowed the appeal. As we have also recorded, the Upper Tribunal concluded that the First-tier Tribunal had erred in law by failing to consider whether the finding it had made entitled Mr Allaraj to succeed on the grounds of appeal which were available to him.

The Upper Tribunal directed that the parties should file and serve skeleton arguments addressing, in particular, the issues of (i) whether the stamp in Mr Allaraj’s passport was a relevant document; and (ii) whether the stamp and the decision of the Immigration Officer which prompted it amounted to the facilitation of residence which brought Mr Allaraj within the personal scope of the Withdrawal Agreement.

In his skeleton argument on behalf of the Secretary of State, Mr Deller made submissions which might properly be summarised in the following way:

In his oral submissions, Mr Deller maintained that the stamp in Mr Allaraj’s passport was neither a relevant document nor evidence of facilitation of residence. The stamp had been placed in the passport erroneously and it seemed that this had happened in a number of cases. Mr Allaraj was not the direct family member of an EEA national on 5 December 2020; he was her fiancé, which did not bring him within Article 2(2) of the Directive. The distinction between direct and other family members had been highlighted by the CJEU in Rahman v Secretary of State for the Home Department (Case C-83/11); [2013] QB 249. Even if the Immigration Officer had concluded that Mr Allaraj was the durable partner of an EEA national, he was not empowered to issue a family permit or a residence card. The former could only be issued by an Entry Clearance Officer, the latter by the Secretary of State. In each case, it was necessary for the officer in question to undertake an extensive examination of the personal circumstances. It was clear, Mr Deller submitted, that Mr Allaraj had not made an application for a family permit or a residence card in the manner specified in regulation 21.

Mr Deller submitted that enquiries within the Home Office suggested that the stamp had been brought into being so as to enable Immigration Officers to admit those who should benefit from the judgment of the CJEU in McCarthy v SSHD (C-202/13); [2015] 2 CMLR 13. There was no relevant provision in the Regulations, however, and the stamp was therefore wrong (even in those cases) to suggest that admission had been under the EEA Regulations. The Secretary of State could not shed light on the number of cases in which the stamp might have been used erroneously but it was seemingly in use across the country.

Mr Deller submitted that the skeleton argument for Mr Allaraj conflated the role of an Entry Clearance Officer and an Immigration Officer. The two had distinct roles, however, and that distinction was recognised in the Regulations and the Secretary of State’s policy guidance. The reality was that an Immigration Officer could not lawfully have done what was done in this case. Whilst it was accepted by the Immigration Officer that Mr Allaraj was in a durable relationship with his fiancée, there was no facilitation of residence. Mr Allaraj could not satisfy the Immigration Rules and he had no rights under the Withdrawal Agreement. Neither the guidance nor the Freedom of Information (“FOI”) response mentioned by his opponent were of any assistance; the latter clearly referred to those who were already in possession of a family permit on arrival in the United Kingdom.

The skeleton argument for Mr Allaraj was settled by Mr Jafar of counsel. He submitted, in summary, that the stamp in Mr Allaraj’s passport was a family permit, lawfully issued by the Immigration Officer at the border, after extensive questioning of Mr Allaraj and his then fiancée. It was submitted that Mr Allaraj was able to satisfy the requirements of the Immigration Rules as such and that his appeal fell to be allowed on that basis. Alternatively, the stamp showed that Mr Allaraj’s residence was being facilitated by the respondent at the point of the UK’s withdrawal from the EU.

Mr Jafar’s skeleton concluded with an observation that the Secretary of State’s department was either ‘functioning in a wholly incompetent manner’ or ‘feigning ignorance of her own actions, policies, rules and procedures’. The truth of the matter was revealed by a response to a Freedom of Information (“FOI”) request.

In his oral submissions for Mr Allaraj, Mr Ahmed felt unable to advance any of the arguments made in the skeleton argument. He asked us to note that it had been accepted by the FtT that the relationship was durable and that there had been no challenge to that finding. Mr Ahmed accepted in terms that the stamp in the passport was not a family permit. He accepted that there was a distinction between an Entry Clearance Officer and an Immigration Officer and that only the former could issue a family permit.

Mr Ahmed submitted that the stamp was a residence card issued by the Secretary of State, however. He based that submission on the contemporaneous notes kept at the border, which showed that the matter had been referred to officers with the designation ‘HO’. Mr Ahmed submitted that these letters showed that the Home Office had taken the ultimate decision and that the stamp was a residence card issued under regulation 18. We asked both advocates whether this was correct. Judge Blundell queried whether ‘HO’ necessarily stood for ‘Home Office’ or whether it might instead stand for ‘Higher Officer’, a term which had replaced ‘Chief Immigration Officer’ internally. Mr Ahmed was unable to address that question. Mr Deller made enquiries over the short adjournment.

On resuming, Mr Deller confirmed on instructions that Chief Immigration Officers and His Majesty’s Inspectors were now known as Higher Officers and Senior Officers respectively. The officers named in the minute (Ballard and Shone) were Higher Officers at the port. We invited him to confirm this in writing. We also asked the parties for any submissions which they wished to make in writing on the question of whether an Immigration Officer (or Border Force Officer) was empowered to take decisions which were specifically entrusted in the EEA Regulations to either an Entry Clearance Officer or the Secretary of State.

We duly received short further written submissions from Mr Deller and Mr Allaraj’s solicitors. Mr Deller confirmed the status of the two officers named in the minute. He was not able in the time available to shed any light on the question we have summarised immediately above. Mr Allaraj’s solicitors were not able to gainsay the Secretary of State’s submissions about the status of the officers. Nor were they able to offer any assistance on the question summarised immediately above. They underlined, however, the unsatisfactory nature of the situation in which Mr Allaraj found himself, having trusted the Immigration Officers to perform their roles in accordance with the law.

In order to minimise the length of this decision, we have appended the relevant provisions at Annex 1.

Mr Allaraj’s appeal was brought against the Secretary of State’s decision to refuse his application for leave to remain under Appendix EU of the Immigration Rules. An appeal against such a decision may only be brought on the grounds of appeal set out in regulation 8 of the Immigration (Citizens' Rights Appeals) (EU Exit) Regulations 2020 (“the 2020 Regulations”). The grounds of appeal applicable to Mr Allaraj’s case were, firstly, that the decision breached any right which he had under the relevant provisions of the Withdrawal Agreement and, secondly, that the decision was not in accordance with the residence scheme Immigration Rules.

In order to decide whether the Secretary of State’s decision was in breach of the relevant provisions of the Withdrawal Agreement or not in accordance with the Immigration Rules, it is first necessary to consider what status, if any, he enjoyed under EU Law and under the EEA Regulations prior to the end of the Implementation Period which followed the UK’s exit from the European Union. That period came to an end at 11pm on 31 December 2020: “IP Completion Day.”

Directive 2004/38/EC (“The Citizens’ Rights Directive”) draws a clear distinction between the rights enjoyed by EEA nationals and their direct family members, on the one hand, and their extended family members, on the other. The distinction was examined and explained by the Grand Chamber of the CJEU in Rahman v SSHD. The Grand Chamber noted, at [19], that the European legislature had

“…drawn a distinction between a Union citizen’s family members as defined in Article 2(2) of Directive 2004/38, who enjoy, as provided for in the directive, a right of entry into and residence in that citizen’s host Member State, and the other family members envisaged in Article 3(2) of the directive, whose entry and residence has only to be facilitated by that Member State.”

The Grand Chamber went on to hold that Member States were not required to grant every application for entry or residence by such ‘other family members’. Member States were instead required to ensure that their national legislation contained criteria which enabled such persons to obtain a decision on their application for entry or residence which was founded on an extensive examination of their personal circumstances. It underlined the wide discretion conferred upon Member States when selecting those criteria but stated that the criteria had to be consistent with the normal meaning of the term ‘facilitate’, and the words relating to dependence in Article 3(2), and must not deprive that provision of its effectiveness.

Mr Allaraj is not an EEA national and he was not the spouse of an EEA national before IP Completion Day. He and his wife married in Walthamstow in August 2021. At the end of the Implementation Period, therefore, they were engaged but not married. It is beyond argument that a fiancé does not fall within the definition of a family member in Article 2(2) of the Citizens’ Rights Directive. When he presented himself to the Immigration Officer on 5 December 2020, he was at most the durable partner of an EEA national under Article 3(2)(b) of that Directive.

In exercising the wide discretion conferred by the Directive, the Secretary of State created national legislation which was prescriptive when it came to the making and the consideration of applications by other family members such as Mr Allaraj. The Immigration (European Economic Area) Regulations 2016 (which were revoked, subject to saving provisions, on 31 December 2020) were prescriptive in the following ways:

Regulation 11 governed the right of admission to the United Kingdom. Notably, that provision makes express reference to the role of the Immigration Officer. Equally notably, it makes no reference to the admission of extended family members. The reason for that is to be found in regulation 7(3). Where an extended family member has been issued with a family permit, registration certificate or residence, he must be treated as a family member provided that he continues to satisfy the relevant conditions in regulation 8 and the family permit (etc) remains in force. Where no such document has been issued by an Entry Clearance Officer or the Secretary of State, an Immigration Officer has no power to admit an extended family member, whether under regulation 11 or any other part of those Regulations.

We note two other features of regulation 11 before summarising our conclusions. Firstly, regulation 11(3) prohibited an Immigration Officer from placing a stamp in the passport of a non-EEA national admitted to the UK under that regulation if the person produced a residence card, derivative residence card, permanent residence card or qualifying EEA state residence card. The omission of a family permit from that list of documents is notable and we can see no reason why an Immigration Officer could not stamp the passport of a non-EEA national family permit holder to show that they had been admitted to the UK under the Regulations.

Secondly, we note that regulation 11(4) required an Immigration Officer to take certain steps before refusing admission to a person who fails to produce a document mentioned in regulation 11(1) or (2). The Immigration Officer must provide every reasonable opportunity for the document to be obtained by, or brought to, that person. He must also ‘allow that person to prove by other means’ that he falls within one of the four categories set out. The second category is ’a family member of an EEA national with a right to accompany that EEA national or join that EEA national in the United Kingdom’. This is significant for two reasons. It shows that an Immigration Officer may admit the family member of an EEA national even if they do not have a family permit (etc), provided that they can prove their status by other means. It also shows, by omission, that no such facility was available to extended family members; an extended family member who presented to an Immigration Officer without a family permit or residence card was not to be treated as a family member to whom this dispensation applied.

We therefore conclude that the correct analysis of the distinct roles of the Entry Clearance Officer, the Secretary of State and the Immigration Officer is as contended by Mr Deller. The Regulations do not use the terms ‘Entry Clearance Officer’, ‘Immigration Officer’ and ‘Secretary of State’ interchangeably. Each has a clearly delineated role within the framework provided by the Regulations. An Entry Clearance Officer is, by regulation 2, a person responsible for the grant or refusal of entry clearance. The Secretary of State’s functions include the consideration of applications made from within the United Kingdom and to undertake the ‘extensive examination’ required by regulation 12(5) and 18(5). Immigration Officers featured on fifteen occasions in the Regulations, performing specifically defined functions such as those we have detailed in regulation 11. It is clear that the Secretary of State did not, when making the Regulations, confer upon Immigration Officers the power to consider applications for family permits or residence cards. (For the sake of completeness, we should note that there is nothing before us to suggest that the Secretary of State delegated her powers, or those given to Entry Clearance Officers, to Immigration Officers (in contrast to the lawful delegation of deportation decisions to Immigration Inspectors considered in R v SSHD ex parte Oladehinde [1991] 1 AC 254). Given the way in which the Regulations are framed, it would have been surprising if she had done so.)

Whether or not the absence of such a power is inconsistent with the normal meaning of the word ‘facilitate’ and whether it deprived Article 3(2) of its effectiveness are not questions which arise in the context of this appeal. As we have explained at [26] above, the grounds upon which this appeal may be brought are narrowly circumscribed and arguments such as those are not justiciable in such an appeal. Had we been able to consider such questions, however, we would have inclined to the view that the absence of such a power was wholly in accordance with the duty imposed by Article 3(2).

Given the extensive examination which must take place before those who are accepted to be extended family members are granted a family permit or residence card, there was every reason for the Secretary of State to conclude that such applications should not be presented to an Immigration Officer at a port of entry. As was made clear in Rahman v SSHD, the Secretary of State’s obligation was to ensure that the national legislation contained criteria which enabled extended family members to obtain a decision on their application for entry or residence. In stipulating the means by which an extended family member was to make such applications, and in stipulating the specific personnel who were to consider those applications, it seems to us that the Secretary of State formulated national legislation which did not deprive Article 3(2) of its effectiveness. For the avoidance of doubt, the views expressed in the latter half of this paragraph are necessarily obiter.

The position, in summary, is as follows. The Regulations required that applications for family permits were considered by Entry Clearance Officers and that applications for registration certificates and residence cards were considered by the Secretary of State. Immigration Officers were not able to consider applications for those documents, or to issue them. An extended family member who had applied for and been issued with a family permit, registration certificate or residence was, by regulation 7(3), to be treated as a family member provided that the relevant conditions continued to be satisfied and the document remained in force. A person to whom regulation 7(3) applied could be lawfully admitted to the United Kingdom by an Immigration Officer under regulation 11. A person who claimed to be an extended family member and to whom regulation 7(3) did not apply, could not be lawfully admitted by an Immigration Officer under the Regulations.

It is within this framework that we must examine the actions of the Immigration Officer at Coquelles on 5 December 2020.

There is a suggestion in the Immigration Officer’s note that he might have considered Mr Allaraj to be a direct family member, but he was not. As we have seen, he could only have claimed to be an extended family member by asserting that he was in a durable relationship with an EEA national. Whilst an Immigration Officer had the discretion we have considered above, to admit a direct family member who did not produce a family permit or other such document, no such discretion was conferred in respect of extended family members.

Mr Allaraj had never made an application for a family permit or for a residence card in a manner which complied with regulation 21. Whilst regulation 21 permitted such an application to be made in person, the general rule was that such an application was still to be made using the specified form. Mr Allaraj is not said to have asserted any circumstances beyond his control which rendered him unable to apply in writing.

More fundamentally, however, it is clear for the reasons that we have set out that an application for a family permit is to be considered by an Entry Clearance Officer and an application for a residence card is to be considered by the Secretary of State (as a non-EEA national, Mr Allaraj could not have been issued with a registration certificate). It follows from that analysis that we reach the clear conclusion that the Immigration Officer had no power to admit Mr Allaraj ‘under the EEA Regulations 2016’ on 5 December 2020. Mr Allaraj was not an extended family member to whom regulation 7(3) applied and the Regulations conferred no power on the Immigration Officer to admit him.

The guidance cited in Mr Jafar’s skeleton argument is of no assistance, referring as it does to the consideration of applications for family permits by Entry Clearance Officers. As we have explained, Mr Allaraj’s application was not for a family permit and it was not considered by an Entry Clearance Officer. Mr Deller is correct in his submission that the skeleton argument seeks impermissibly to conflate the distinct roles of Entry Clearance Officer and Immigration Officer.

The FOI response cited in Mr Jafar’s skeleton argument is also of no assistance, referring as it does to stamps placed by Border Force Officers ‘in the passport of a Family Permit holder’. We have considered at [33] above the ability of an Immigration Officer to place a stamp in the passport of a family permit holder. The FOI response goes no way at all to establishing that a Border Force Officer might issue a family permit by stamping the passport.

As we have recorded, Mr Ahmed did not seek to persuade us that Mr Deller’s submissions in these respects were wrong. His submission was, instead, that the decision to admit Mr Allaraj was not a decision taken by an Immigration Officer. In reliance on the letters ‘HO’ in the minute created by the Immigration Officer, he submitted that the decision had actually been taken by the Secretary of State or by a person properly delegated by her to take such a decision.

With respect to Mr Ahmed, that rather tentatively made submission is unsustainable. As was made clear by Mr Deller and accepted by Mr Allaraj’s solicitors in post-hearing submissions, the letters ‘HO’ in this context refer to the grade of the Immigration Officers in question. The matter was referred by a Border Force Officer to two Higher Officers, who both considered (wrongly) that they had the power to admit Mr Allaraj to the United Kingdom under the EEA Regulations. The minute provides no basis for concluding that the case was referred to a decision maker authorised by the Secretary of State to consider applications for a residence card.

In our judgment, therefore, the position under the Immigration (EEA) Regulations 2016 was quite clear. An Immigration Officer had no power under those Regulations to consider an application for a family permit or a residence card and had no power under the Regulations to admit an extended family member to the UK where that person did not hold such a document.

With some encouragement from the Upper Tribunal, Mr Deller suggested that the stamp which was used in this case was brought into being to ensure that Immigration Officers were able to act in accordance with the judgment of the CJEU in McCarthy v SSHD. On reflection, we think it is preferable not to engage in further speculation on the point. What matters for the purpose of this decision is our clear conclusion that an Immigration Officer had no power to admit Mr Allaraj under the Regulations.

As Mr Deller submitted, that conclusion marks the difference between this case and cases such as R v SSHD ex parte Ram [1979] 1 WLR 148, in which an Immigration Officer had mistakenly, but with lawful authority, stamped the applicant’s passport to show that he had indefinite leave to enter. The applicant – who had relied on the stamp while remaining in the UK and setting up a business here – had not been lawfully detained by a subsequent Immigration Officer and his application for a writ of habeus corpus was granted accordingly. Here, in contrast, the Immigration Officer was not acting with lawful authority when he purportedly admitted Mr Allaraj to the United Kingdom.

It follows from the above that Mr Allaraj held neither a family permit nor a residence card under the EEA Regulations on 5 December 2020 or thereafter. Having reached that conclusion, we turn to consider Mr Allaraj’s situation with reference to the two grounds of appeal which are available to him under the 2020 Regulations.

We will consider those questions with reference to the decision of the Court of Appeal in Celik v SSHD [2023] EWCA Civ 921. That judgment was handed down on 31 July 2023, after the conclusion of argument in this appeal. Neither party has sought permission to make submissions on that judgment and we did not consider it necessary to invite the parties to do so, given the Court of Appeal’s substantial endorsement of the Upper Tribunal’s decision: [2022] UKUT 220 (IAC).

Amongst many other things, the Withdrawal Agreement governs the rights of EU nationals and their family members to continue to reside in the United Kingdom following the departure of the United Kingdom from the European Union and the end of a transition period on 31 December 2020. Article 10 of the Withdrawal Agreement defines the persons who fall within its personal scope for those purposes. It has never been suggested that Mr Allaraj might conceivably fall within Article 10(1) or (4). Insofar as he has previously relied upon the Withdrawal Agreement, the focus has been on Article 10(2)-(3), which provide that the following categories of person fall within scope of the Agreement:

At [6] of his skeleton argument, Mr Deller submitted that Mr Allaraj does not fall under Article 3(2)(b) of the Directive because his relationship did not meet the UK’s definition of ‘durability’ by the end of the transition period. Lewis LJ made reference to that definition, and to the guidance within which it was to be found, at [17] of his judgment in Celik v SSHD. The guidance suggested that a relationship would be considered durable if it was established by evidence that the couple had cohabited for two years, but it was accepted that there might be circumstances in which a relationship was considered to be durable in the absence of such cohabitation. Mr Deller referred to this as a ‘rule of thumb’, borrowing from (although not citing) the expression used by the Upper Tribunal in YB (EEA reg 17(4) - proper approach) Ivory Coast [2008] UKAIT 00062; [2009] Imm AR.

We consider this submission to be made too belatedly. No reference was made to the rule of thumb before the FtT. The judge in the FtT concluded that the relationship was a durable one. The Secretary of State’s grounds of appeal to the Upper Tribunal contained no complaint that the judge had failed to consider the rule of thumb. Nothing in the decision of Upper Tribunal Judge Frances and Deputy Upper Tribunal Judge Davey suggests that there was any attempt by the Senior Presenting Officer then representing the Secretary of State to seek permission to amend the grounds. There is nothing in the Upper Tribunal’s decision which suggests any legal flaw in that particular conclusion which justified it being set aside. The first attempt to revisit that finding was in Mr Deller’s skeleton, which was filed and served less than 48 hours before the hearing. We accept Mr Ahmed’s submission, therefore, that the finding made by the FtT in this respect should remain undisturbed.

At [7]-[14] of his skeleton argument, however, Mr Deller submitted that Mr Allaraj was in any event unable to satisfy the remaining aspects of either Article 10(2) or (3). Mr Ahmed did not attempt to make a submission to the contrary and we consider that he was correct not to do so. Given the absence of counter argument on the point, we propose to explain our conclusions fairly briefly.

As Lewis LJ stated at [60] of Celik v SSHD, Articles 10(2) and (3) deal with situations in which the residence of an individual is facilitated by the host state in accordance with its national legislation. Article 10(2) applies where an application has been made and residence facilitated before the end of the transition period. Article 10(3) applies where an application was made before the end of the transition period but only granted, and residence facilitated, after the end of that period.

Mr Allaraj’s residence was not facilitated by the UK in accordance with its national legislation before the end of the transition period. As we have seen, Mr Allaraj was not granted a family permit or a residence card before IP Completion Day. There was no extensive examination of his personal circumstances by a relevant official before that point in time. In order to establish that his residence was facilitated before the end of the transition period, Mr Allaraj was required to demonstrate that such an examination had taken place and that the relevant official had decided in the exercise of their discretion to issue the document sought. Since none of those steps had occurred, he is not within the scope of Article 10(2). The placing of the stamp in the passport on 5 December 2020 could not amount to facilitation of residence and was beyond the lawful authority of the Immigration Officer for the reasons we have already given.

Nor is Mr Allaraj able to show that he is within the scope of Article 10(3). As Mr Deller submitted, he made no application for facilitation of residence before the end of the transition period. Such an application could, in the case of an extended family member, only be made to an Entry Clearance Officer or the Secretary of State and regulation 21 contained general requirements for the form of such an application. Whilst it is clear that Mr Allaraj sought admission to the UK under EU Law when he presented himself to the Immigration Officer on 5 December 2020, that application was not made in accordance with the applicable provisions of national legislation and cannot amount to an application which engages Article 10(3). In any event, Article 10(3) is to be read as a whole and cannot be met unless an application has been made before the end of the transition period and granted after that date: Celik v SSHD refers, at [95].

Mr Allaraj is therefore unable to bring himself within the scope of Article 10(2) or (3). We should perhaps note that he would also not have been able to bring himself within the scope of Article 10(1)(e) for the reasons given at [53]-[57] of Celik v SSHD: Mr Allaraj was not the family member of an EU national before the end of the transition period and he was not residing in the UK in accordance with Union Law before the end of the transition period.

In the circumstances, Mr Allaraj is unable to succeed on the ground that the respondent’s decision breached a relevant right conferred under the Withdrawal Agreement. He is not within the personal scope of that Agreement.

We have set out at the start of this decision the basis upon which the Secretary of State concluded that Mr Allaraj was unable to meet the requirements of Appendix EU of the Immigration Rules. There was no attempt before us to submit orally or in writing that the First-tier Tribunal’s finding of fact as to the durability of the relationship was dispositive of the appeal in Mr Allaraj’s favour; it was implicitly accepted in Mr Jafar’s skeleton that it was for Mr Allaraj to show that he held a relevant document as the durable partner of an EEA national.

Mr Allaraj cannot satisfy the requirements of paragraphs EU11 or EU14 of Appendix EU of the Immigration Rules for the same reasons that Mr Celik was not able to do so. Drawing on what was said by Lewis LJ at [35] and [68] of Celik v SSHD, the position is as follows.

Mr Allaraj was not a family member at the material time. His marriage took place months after IP Completion Day. He was not a durable partner within the meaning of Annex 1 to Appendix EU because he did not have a relevant document (a family permit or a residence card), as required by those Rules. And, despite the stamp placed in his passport by an Immigration Officer on 5 December 2020, Mr Allaraj was present in the UK unlawfully because the Immigration Officer had no power to admit him to the UK under the EEA Regulations. Even if he was in a durable relationship with an EU national before 31 December 2020, that relationship was not evidenced by the grant of a relevant document as defined in the Immigration Rules.

In the circumstances, Mr Allaraj is not able to establish that the respondent’s decision was not in accordance with the Residence Scheme Immigration Rules. It follows that we will remake the decision on his appeal by dismissing it on both grounds of appeal which are available to him.

We have considerable sympathy with Mr Allaraj. There is nothing before us to suggest that he has acted in anything other than good faith. He understandably thought that the Immigration Officer had the power to admit him to the United Kingdom and he is said to be distressed by the submissions now made by the Secretary of State to the contrary. It is a wholly unsatisfactory situation, as Mr Deller acknowledged before us.

There are other cases in which this wholly unsatisfactory state of affairs has occurred, and Immigration Officers have placed similar stamps in the passports of extended family members who could not be admitted to the UK under the Regulations. At least three such cases have been before the Upper Tribunal to our knowledge. One of those cases - GH (Albania) v SSHD – was drawn to the Upper Tribunal’s attention by the Government Legal Department in advance of this hearing. GH (Albania) was decided by a panel of the Upper Tribunal under reference UI-2022-003053. The appellant was subsequently granted permission to appeal to the Court of Appeal under reference CA-2023-000371. The Secretary of State submitted that this appeal should be adjourned to await the Court of Appeal’s decision. That application was refused in advance of the hearing, in light of the need for the Upper Tribunal to express a concluded view on the issues, given the number of cases in which these issues are arising. We should record that Mr Deller, who only assumed conduct of the case at the eleventh hour following the refusal of that adjournment request, did not renew the application. Given that permission to appeal to the Court of Appeal was only granted at the end of June, we would have refused any such application had it been made.

Nothing we have said in this decision is intended to suggest that Mr Allaraj or any other litigant in a similar situation might not have alternative means of recourse against the Secretary of State or the Immigration Officer for the unlawful stamping of the passport and the difficulties which it has caused. Our decision is confined to considering the effect of those actions in an appeal of this nature.