Tanjina Siddiqa v Entry Clearance Officer

The appellant’s case under Ground (1) was that the First-tier Tribunal had materially erred in law by wrongly assuming that the appellant had only appealed under the CRA Regulations when in fact she had also, or only, appealed under the 2016 Regulations. This overarching ground involves a series of sub-issues which we address in turn.

The right to appeal under the 2016 Regulations is set out in Regulation 36(1), which provides that “the subject of an EEA decision may appeal against that decision under these Regulations”.

An “EEA decision” is defined by Regulation 2 which provides in material part as follows:

As to how Regulation 2 should be interpreted, Mr Biggs relied on Khan v SSHD & Anor [2017] EWCA Civ 1755, [2018] 1 WLR 1256. In Khan, the Court of Appeal was concerned with an application by an extended family member under the materially similar language of the predecessor to the 2016 Regulations. The Court held that the words “concerns…an entitlement” did not exclude decision-making in respect of extended family members, even though this involved the exercise of a discretion on the part of the respondent: [20], [23], [42]-[45], [48] and [51]. On that basis, Mr Biggs submitted that the language used in Regulation 2 is broad, and the words “a decision that…concerns…a person’s entitlement to be admitted to the United Kingdom” in limb (a) of the definition of an EEA decision was wide enough to cover the 25 January 2021 decision. Arguably so too was the wording of limb (b) of the definition (“a person’s entitlement to be issued with or have renewed, or not to have revoked, an EEA family permit”).

Ms Ahmed did not take issue with the appellant’s reliance on Khan, but submitted that the decision in this case was simply not covered by Regulation 2, as it was not a “decision under these Regulations” for the purposes of the opening words of Regulation 2. Further, the decision did not concern “a person’s entitlement to be admitted to the United Kingdom” for the purposes of Regulation 2(a), as this related to the provisions for rights of admission to the UK under Regulation 11 of the 2016 Regulations, with which the respondent’s decision was not concerned. The decision was not concerned with the 2016 Regulations but was solely focussed on whether or not to grant the appellant an EUSS family permit under the CRA regulations.

The effect of these submissions is that whether or not the decision in this case was an “EEA decision” for these purposes becomes a largely factual one. It is necessary to determine whether the respondent (and thus the First-tier Tribunal) erred in not treating the application as one made under the 2016 Regulations.

Mr Biggs argued that the appellant objectively intended to, and in substance did, make an application under the 2016 Regulations. Although the appellant’s 7 December 2020 application wrongly referred to the EUSS, it was tolerably clear from the entirety of the material provided that she was seeking to join her brother in the UK on the basis that she was an extended family member pursuant to Regulation 8 of the 2016 Regulations. This was apparent from (i) the fact that the appellant’s sponsor was identified on the form as a relative who could only be an extended family member under the 2016 Regulations; (ii) the documents submitted with the application, which were consistent with it being an application under the 2016 Regulations; and (iii) the wording of the 14 December 2020 letter of declaration submitted with the application, to the effect that the appellant sought a family permit based on her dependence on her sponsor brother. In light of Khan, and the substance of the appellant’s application, Mr Biggs submitted that the respondent’s 25 January 2021 decision concerned the appellant’s “entitlement to be admitted to the United Kingdom” under the 2016 Regulations and therefore generated the right appeal under Regulation 36.

He drew support from the decision of the Upper Tribunal panel in ECO v Ahmed and ors (UI-2022-002804-002809), where the applicants had also erroneously made applications for EUSS family permits when they intended to make applications under the 2016 Regulations. As had occurred in this case according to Mr Uddin, “confusion and ambiguity” had arisen because the applicants had selected the “incorrect pre prepared answer from a drop-down menu in one box on the first page of the same form”: [24]. The Upper Tribunal held:

Ms Ahmed submitted that the evidence that the appellant’s application was one which, objectively viewed, was one under the 2016 regulations was very thin. The reference in the 14 December 2020 letter to a “European family permit visa” could be taken as either an EUSS application or an application under the 2016 Regulations. Ahmed should not be relied on as it is an unreported authority and the respondent has sought permission to appeal it. In any event the facts of Ahmed meant that it could be distinguished from this case. It involved merely a clerical error in the application form, and the covering letter had specifically referred to the 2016 Regulations: Ahmed at [12].

She argued that it is an applicant’s responsibility to ensure they apply for the correct product and to follow the correct application process for it. Ignorance of the law is not a defence. The respondent had set out information about the two different schemes on www.gov.uk to assist applicants decide which product to apply for. As at 4 December 2020 the website clearly explained who was eligible for an EUSS family permit and who was eligible for an EEA family permit. It was unreasonable to expect the respondent to have deciphered the appellant’s intention on the facts of this case. The consequences of a ruling that the respondent is obliged to consider an application made on one basis as if it were made on another is likely to be significant. Given the number of applications the respondent processes each year (for example, the respondent refused 365,899 visa applications in the year ending 30 September 2022), it was not reasonable to expect the respondent to consider those applications under other routes and provide a right of appeal (if applicable) even though no application under that route was actually made. Reliance on intention in this context is problematic in principle and could have adverse consequences for applicants.

We consider that the factual background to the Ahmed decision is markedly different to this case. The key reason why the Upper Tribunal made the decision it did in Ahmed was the nature of the covering letter which accompanied the applications, described by the Upper Tribunal thus:

In summary, therefore, the Upper Tribunal found that the clarity with which the appellants in Ahmed had indicated in the covering letter that they were making an application under the 2016 Regulations should have been seen by the ECO as “correcting” the fact that they had erroneously selected the EUSS option on the drop-down menu.

The position was different in this case. The covering letter did not specifically refer to the 2016 Regulations or give any other express indication that this was the nature of the application being made. It referred to a “European Family Permit Visa” which, objectively viewed, was at least consistent with an application for an EU Settlement Scheme Family Permit, the drop-down box for which had been selected (even if it could also be said to be consistent with an EEA family permit under the 2016 Regulations). In those circumstances, it was not unreasonable for the ECO to treat it as such, and not to review the contents of the application and consider whether it had been correctly advanced.

As explained at [12] above, the First-tier Tribunal judge decided this issue on the basis that CP did not oblige an ECO to apply any other law or application criteria other than that under which the application was made. We consider that this was correct. We are fortified in this by the Upper Tribunal’s decision in Batool and our findings in respect of Articles 18(1)(o) and 18(1)(r), as set out under Issue (7) below.

However, even if Ahmed is correct, and it is appropriate for an ECO to look beyond the category of application selected on the drop-down menu, that approach does not assist the appellant for the reasons set out above.

We therefore conclude that the respondent had not made an EEA decision for the purposes of Regulation 2 of the 2016 Regulations, such that the First-tier Tribunal was correct to find as it did at [23] of its decision that it was not obliged to determine the appeal with reference to the 2016 Regulations.

As noted at [18] above, in granting permission Upper Tribunal Judge O’Callaghan identified Regulation 21 of the 2016 Regulations as a potential difficulty for the appellant’s case.

Regulation 21 provides as follows:

Ms Ahmed submitted that even if the respondent was obliged to consider the appellant’s application as if it had been made under the 2016 Regulations, it was not a valid application for an EEA family permit because it did not comply with Regulation 21(1)(a) thereof. This was because it was not submitted electronically using the relevant web page of www.gov.uk for EEA family permits: instead the appellant selected the different web page to apply for an EUSS family permit. As the application was invalid, Regulation 21(4) would have required the respondent to reject it.

Mr Biggs argued that the application complied with Regulation 21(1)(a). Although the wrong option was selected, the appellant nevertheless used the web page specified for an application under the 2016 Regulations, as the www.gov.uk website used the same web pages for EEA applications and EUSS applications, albeit that an applicant had to make selections within at least one of the web pages identifying which route to immigration status the applicant was using. He submitted that bearing in mind the terms of Regulation 21(1)(a), selecting the wrong option on the right web page could not itself invalidate the application under the 2016 Regulations, at least not if it was apparent that the intention of the applicant was to apply for a family permit.

He observed that the respondent had adduced no evidence in support of her assertion that the appellant did not use the relevant page of www.gov.uk to apply for an EEA family permit. Given that the respondent should have access to the relevant evidence but had chosen not to provide it, he submitted that the unsupported assertion should not be accepted, in reliance on Royal Mail Group Ltd v Efobi [2021] UKSC 33; [2021] 1 WLR 3863 at [41]. Further, he noted that the respondent’s assertion as to the way in which the www.gov.uk site operated was inconsistent with her position before, and the decision of the Upper Tribunal in, Ahmed, recorded at [23] of the decision thus:

We note that the description of the manner in which the website operates summarised in Ahmed at [23] is broadly consistent with Mr Uddin’s description of using it. Further, the respondent was aware from the time of the adjourned hearing in this case in October 2022 that the manner in which the website operates was likely to be an issue on this appeal, but has chosen not to adduce any evidence about it. That is particularly surprising if she wished to seek to persuade us that the finding made in Ahmed, stated to be without demur from the respondent in that case, was actually incorrect.

We therefore consider it more likely that the description of how the website operates set out in Ahmed is correct. However, the appellant did not select the correct option within the website to apply for a permit under the 2016 regulations; and for the reasons set out under Ground (1) did not otherwise make clear that she was seeking to do so. It was not therefore an application made in accordance with Regulation 21(1)(a). However, this issue is immaterial given our conclusion on Issue (1).

Mr Biggs submitted that reliance by the respondent or the First-tier tribunal on the suggestion that Regulation 21 was not satisfied to argue that a right to appeal under the 2016 Regulations did not arise would be contrary to Article 18(1)(o). That Article at least required the respondent to allow the appellant to confirm whether she sought to apply under the 2016 Regulations, or under the EUSS, or both, and if necessary to give her the chance to vary the December 2020 application accordingly. This was so that she could “correct any deficiencies, errors or omissions”.

Further, he submitted that the respondent and the First-tier Tribunal should be precluded from relying on a procedural deficiency that would or could have been remedied had Article 18(1)(o) been complied with: to do otherwise would be to permit the respondent to rely on her own breach of Article 18(1)(o), which would be inconsistent with Article 18(1)(r).

This aspect of Ground (1) overlaps substantially with Mr Biggs’ submissions on Ground (2), and so we consider it further under that heading below.

Ms Ahmed submitted that even if the appellant had received an adverse EEA decision for the purposes of the 2016 Regulations this would not have availed her. This was because the ECO made the decision under challenge on 25 January 2021. By that date, the 2016 Regulations had been revoked subject to the saving and modifying provisions in Schedule 3 to the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020 (“the CSTT Regulations”). The combined effect of paragraphs 5(1)(d) and 6 of schedule 3 was that it would not have been open to the First-tier Tribunal to allow the appeal under the 2016 Regulations as saved and modified, only potentially under the citizens’ rights agreements, which was a ground of appeal the appellant had under the CRA Regulations in any event.

Mr Biggs submitted that this argument was misconceived because (i) it failed to have regard to the entirety of the scheme of schedule 3 to the CSTT Regulations; (ii) it was inconsistent with the position of the Upper Tribunal and the respondent recorded in Batool at [67]; and (iii) it was inconsistent with the position taken by the respondent at page 11 of her policy entitled “EU Settlement Scheme Family Permit and Travel Permit” (version 4).

As we have found no error of law in the First-tier Tribunal’s approach under Ground (1) we do not need to determine the materiality issue. Had we been required to do so, we would have found in the appellant’s favour on it: we consider Mr Biggs’ submissions, in particular the elements of it summarised at (i) and (ii) above, persuasive.

For all these reasons Ground (1) fails.

Ground (2) asserts that the First-tier Tribunal materially erred in law in respect of its interpretation and application of Article 18(1) of the Withdrawal Agreement, in particular Articles 18(1)(o) and (r). This is because Article 18(1)(o) required the respondent to consider the substance of the appellant’s application rather than insist rigidly on requirements of form, and the failure to comply with this obligation meant that the respondent breached Article 18(1)(r) by acting disproportionately. It was argued that the appeal should also have been allowed by the First-tier Tribunal on this basis.

Articles 18(1)(o) and 18(1)(r) of the Withdrawal Agreement provide that:

Ms Ahmed submitted that the provisions of Article 18 of the Withdrawal Agreement are irrelevant to the appellant’s application, the respondent’s decision or this appeal. That is because the appellant did not make an application pursuant to Article 18(1) of the Withdrawal Agreement. This means an application “for a new resident status” which may be made by EU citizens and their family members “who reside in [the UK’s] territory in accordance with the conditions set out in this Title”, the requirements of which are reflected in Appendix EU to the Immigration Rules. The appellant does not reside in the UK and she did not make an application under Appendix EU. She resides in Bangladesh and applied under Appendix EU (Family Permit).

Mr Biggs highlighted that this argument was not part of the basis on which the First-tier Tribunal rejected the appellant’s reliance upon Article 18(1)(o). The respondent was therefore seeking to uphold the decision of the First-tier Tribunal on a different basis to the one given. In those circumstances the respondent was obliged to raise the point in her Rule 24 response in accordance with SSHD v Devani [2020] EWCA Civ 612; [2020] Imm AR 1183 at [12] and [29]-[35] and Smith (appealable decisions; PTA requirements; anonymity [2019] UKUT 216 (IAC); [2019] Imm AR 1325 at [48]-[59] and any application to amend her Rule 24 response in this respect would now be far too late.

In any event, he submitted that the respondent’s interpretation of Article 18, which would substantially reduce its scope and mean it did not apply to applications made by EU nationals, their family members and their extended family members who are outside the UK, was wrong. This was because such an interpretation (i) would undermine the apparent purposes and objectives of the Withdrawal Agreement as set out in the recital; (ii) was inconsistent with the overall scheme of the Withdrawal Agreement, in particular, the personal scope provisions in Article 10(1)(e) and 10(3), which clearly applied to people outside the UK; (iii) was inconsistent with Batool where the Upper Tribunal gave no indication that there was any doubt that Article 18 could apply to applications by extended family members who were outside the UK; and (iv) was inconsistent with Celik at [62] where the Upper Tribunal held that:

In Batool, the appellants were living in Pakistan when they made applications on 3 February 2020 under the EUSS. Their applications were refused by the respondent on 20 February 2020 on the basis that none of them met the eligibility requirements for an EUSS family permit. One of the arguments advanced was that Article 18 required the United Kingdom to issue residence documents to family members and other persons, that expression being a shorthand for extended family members and those in a durable relationship: Batool at [16]. We agree with Mr Biggs that in considering the appellants’ arguments about Article 18, it was no part of the Upper Tribunal’s reasoning that this Article was not available to the appellants as extended family members who were outside the UK at the time of their applications: Batool at [70]-[73].

Ms Ahmed lodged further submissions on this issue after the hearing (with our permission). She argued that although the First-tier Tribunal judge had considered Article 18, this appeared to have been of the judge’s own motion rather than as a result of the submissions from the parties. The Article 18 point was first raised by the appellant in the appeal after the respondent’s Rule 24 response had been filed. The overriding objective dictated that the respondent be able to rely on this point.

Given the importance of the Article 18 arguments to the appeal, we consider that it is appropriate to permit the respondent to respond to them in full, notwithstanding her failure to apply to amend her Rule 24 response to take this point. However we do not consider that this particular aspect of her Article 18 submissions is persuasive for the reasons given by Mr Biggs. We note in particular that the out-of-country basis on which the applications were made was not considered an issue in Batool.

Article 10(3) of the Withdrawal Agreement provides that:

Mr Biggs submitted that the First-tier Tribunal appeared to accept that the appellant fell within the personal scope of Title II, Chapter 1 of the Withdrawal Agreement under Article 10(3). This was correct because (i) Article 10(3) has an autonomous meaning and should not be confined to applications for facilitation of entry and residence that comply with Regulation 21: what matters for the purposes of Article 10(3) is the substance of the application; (ii) for the reasons advanced under Ground (1), she had made a valid application under the 2016 Regulations which complied with the requirements of Regulation 21; (iii) this meant that she had sought to facilitate her entry and residence in to the UK as an extended family member falling within Article 3(2) of Directive 2004/38 in time; and (iv) if there was any formal difficulty in respect of that application, it would be contrary to Article 18(1)(o) to deny it. The fact that the appellant was within the personal scope provisions in Article 10(3) distinguished her case from the facts of Batool (see [66] thereof).

Further, he submitted that in Celik at [62] (see [68] above) it was expressly acknowledged that an applicant could benefit from the protections of Article 18(1)(o) even if they did not satisfy the personal scope provisions in Article 10.

Ms Ahmed submitted that the appellant was not within the personal scope of the Withdrawal Agreement. An application for facilitation of entry for the purposes of personal scope means an application for an EEA family permit under the 2016 Regulations, which meets the validity requirements set out in Regulation 21 thereof, and the appellant had made no such application.

It is clear that a key part of the appellant’s case on personal scope relies on whether or not she had made an application under the 2016 Regulations. For the reasons set out under Ground (1) we find that the ECO was entitled to conclude that she had not.

To the extent that the arguments on personal scope rely on whether Article 18(1)(o) required the respondent to address any deficiencies in the appellant’s application, we address them under Issue (7).

Beyond that, we do not consider it necessary to reach a final view on this issue. Rather, we are content to accept, for the purposes of argument, that the appellant can, in principle, invoke Article 18 on the basis of Celik at [62].

Mr Biggs relied on R (Independent Monitoring Authority for the Citizens’ Rights Agreements) v SSHD [2022] EWHC 3274 (Admin) at [64]-[70] and [128]-[136] for the proposition that in interpreting the Withdrawal Agreement, it is necessary to consider its purposes, objects and context. Ms Ahmed did not dispute that this was the correct approach.

He argued that the First-tier Tribunal’s rejection of the arguments relating to Article 18 at [26]-[27] of its decision (see [15]-[16] above) was wrong in law. The Tribunal’s finding in respect of the burden being on the applicant is inconsistent with the language and purpose of Article 18(1)(o). The failure to comply with the Article 18(1)(o) obligation and consider the substance of the appellant’s application rather than insisting rigidly on requirements of form meant that the respondent breached Article 18(1)(r) by acting disproportionately. Bearing in mind the language and purpose of the relevant parts of the Withdrawal Agreement, Article 18(1)(o) and/or (r) can and should be read as at least imposing a duty on the respondent to give the appellant the opportunity to correct an error or omission in her application that meant, or may well have meant, that she lost out on her legal right (or her right to seek) a family permit or entry under the 2016 Regulations.

Further, he submitted that there is no good reason why Article 18(1)(o) should be read narrowly to exclude errors or omissions of this sort. The very purpose of the right under Article 18(1)(o) is to allow for defects in an application including defects going to validity to be addressed without prejudicing the position of the applicant. The parties to the Withdrawal Agreement must have intended to allow the sort of defects that had arisen here to be addressed. The construction he contended for was consistent with the language and context of the provision, the objects and purposes of the Withdrawal Agreement, and with fairness and common sense

On that basis, he submitted that there had been a breach of Article 18(1)(o) and/or (r) and the First-tier Tribunal should have allowed the appeal on this basis, even if it was proceeding only under the CRA Regulations. Finally, he contended that the respondent’s reliance on Batool was misconceived, because Batool had not considered the argument made in respect of Ground (1) in this case or Article 18(1)(o).

Ms Ahmed submitted that the appellant did not benefit from Article 18 and could not establish that her Withdrawal Agreement rights had been breached. She relied on the findings of the Upper Tribunal in Batool at [70]-[73] to this effect:

We consider that Ms Ahmed was correct to draw support from Batool. The above passages make clear that the Upper Tribunal did not accept that Articles 18(1)(e) or (f) meant that the respondent “should have treated one kind of application as an entirely different kind of application”; and that it was not disproportionate under Article 18(1)(r) for the respondent to “determine…applications by reference to what an applicant is specifically asking to be given”. We cannot identify any reason or principle why framing the argument by reference to Article 18(1)(o) should lead to a different result. Accordingly, consistently with the approach taken by the Upper Tribunal in Batool, we do not accept that Article 18(1)(o) required the respondent to treat the appellant’s application as something that it was not stated to be; or to identify errors in it and then highlight them to her.

As the First-tier Tribunal judge noted, Annex 2.2 of Appendix EU (Family Permit) enables a decision maker to request further missing information, or interview an applicant prior to the decision being made. The guidance given by the respondent as referred to in Batool at [71] provides “help [to] applicants to prove their eligibility and to avoid any errors or omissions in their applications” for the purposes of Article 18(1)(o). Applicants are provided with “the opportunity to furnish supplementary evidence and to correct any deficiencies, errors or omission” under Article 18(1)(o). In accordance with Batool, we do not accept that Article 18(1)(o) required the respondent to go as far as identifying such deficiencies, errors or omission for applicants and inviting them to correct them. This is especially so given the “scale of EUSS applications” referred to in Batool at [72]. Contrary to Mr Biggs’ submission, this does provide a good reason for Article 18(1)(o) to be read narrowly to exclude errors or omissions of this sort, and this was the effect of the approach taken by the Upper Tribunal in Batool.

Accordingly, Ground (2) fails.

It follows that we do not accept Mr Biggs’ submissions on the impact of Article 18(1)(o) on any breach of Regulation 21, summarised under Issue (3) of Ground (1) above, either.

For all these reasons, despite the comprehensive submissions of Mr Biggs, the appeal is dismissed.

The making of the decision of the First-tier Tribunal did not involve an error on a point of law requiring it to be set aside. We do not set aside Judge Rodger’s decision and his decision therefore stands.