Vasa v The Secretary of State for the Home Department [2024] EWCA Civ 777 (10 July 2024)
The Court of Appeal held in this case that the SSHD had erred in refusing to grant pre-settled or settled status under the EU Settlement Scheme (EUSS) to non-EU nationals who were siblings of EU nationals who had exercised free movement rights in the UK before its withdrawal from the EU. The non-EU siblings had come to the UK border prior to the UK's withdrawal from the EU and immigration officers had given their passports stamps saying that they were admitted to the UK under the Immigration (European Economic Area) Regulations 2016. While those stamps were not relevant documents for extended family members under the EUSS, the SSHD's refusal to accept them for the purposes of that scheme breached their rights under the EU-UK Withdrawal Agreement. The SSHD had appealed against a decision overturning his refusal to grant an Albanian national Mr Leonard Vasa pre-settled or settled status under the EU Settlement Scheme as a relative of an EEA national. Moreover, another Albanian national Mr Gentian Hasanaj appealed against a decision upholding the SSHD's refusal of status in his case. While the UK had been a Member State of the EU, nationals of other Member States had rights of entry and residence under Directive 2004/38/EC. Article 2 granted similar rights to defined family members. Article 3(2) dealt with family members outside the article 2 definition. It did not oblige Member States to grant such extended family members entry and residence rights, but only to facilitate entry and residence; any rights of entry and residence extended family members had therefore derived from national law, not EU law.
The 2016 Regulations implemented the Citizens' Directive in the UK. Notably, regulation 7(3) provided that extended family members issued with an EEA family permit, residence card or registration certificate had to be treated as family members if they satisfied all the relevant conditions. The 2016 Regulations were revoked on 31 December 2020 at the end of the transition period of the UK's withdrawal from the EU and the EU-UK Withdrawal Agreement sought to protect those who had exercised free movement rights prior to the UK's withdrawal. Article 10(2) provided that extended family members "whose residence was facilitated by the host State in accordance with its national legislation before the end of the transition period in accordance with [art.3(2) of the Directive] shall retain their right of residence" and article 18 provided that the UK could provide for a new residence status. Article 18(1)(l)(iv) provided that documents required for that status could include, for extended family members, "a document issued by the relevant authority in the host State in accordance with [art.3(2)]". The EU Settlement Scheme, set out as Appendix EU of the Immigration Rules, provided the new residence status. Mr Vasa and Mr Hasanaj had both come to the UK border before the end of the transition period and they each had a sibling who was an EU national living in the UK and UK immigration officers stamped their passports with the words "Admitted to the United Kingdom under the Immigration (EEA) Regulations 2016" and they were allowed to travel into the UK.
The SSHD refused their applications because they did not have the evidence required by Appendix EU Annex 1, namely a family permit or residence card issued under the 2016 Regulations. The Upper Tribunal allowed Mr Vasa's appeal against that decision and Mr Hasanaj's appeal was unsuccessful. The Court of Appeal dismissed the SSHD's appeal in Mr Vasa's case and allowed Mr Hasanaj's appeal.
The Court of Appeal
Underhill, Nicola Davies and Lewis LJJ first addressed the effect of passport stamps and then examined rights under article 10(2) of the Withdrawal Agreement, the status of the passport stamps, and the immigration officers' decisions.
Mr Vasa and Mr Hasanaj had presented themselves at the border wanting to be allowed to come and live in the UK with their siblings who were EU nationals and the immigration officers had taken decisions to admit Mr Vasa and Mr Hasanaj. Those decisions had been recorded by the stamps in their passports. Considered objectively, a reasonable person would understand the stamps to record a decision that they had been allowed to come into the UK and live there with their EU national relatives. The court found that the stamps did not constitute relevant documents as defined by Appendix EU of the Immigration Rules and did not satisfy the requirements of Appendix EU Annex 1. Lewis LJ held as follows:
61. The position in that regard is relatively straightforward. The stamps in Mr Vasa's and Mr Hasanaj's passports do not constitute relevant documents as defined by the provisions of the Appendix EU. They were not in fact family permits issued under regulation 12 of the 2016 Regulations, nor a residence card issued under Regulation 18, or a registration certificate issued under Regulation 17. Mr Vasa and Mr Hasanaj had not applied for such documents. No decision was made to grant any such applications for such documents. The stamps in the passports do not therefore satisfy the requirements of Annex 1 of Appendix EU.
Next, the Court of Appeal considered rights under Withdrawal Agreement and stated that however article 10(2) brought family members within the scope of the Agreement if they were individuals "whose residence was facilitated by the host state in accordance with its national legislation before the end of the transition period". Observably, Mr Vasa and Mr Hasanaj's residence in the UK had been facilitated by the acts of the immigration officers.
Both of them had been admitted pursuant to decisions taken by public officials: they had been allowed to come to and reside in the UK. They fell within the scope of article 10(2). They did not have any rights derived from EU law to reside in the UK, as they were not EEA nationals or direct family members of such nationals within the meaning of article 2 of the Citizens' Directive. But since the UK had chosen to create a new residence status, article 18(1)(l)(iv) of the Withdrawal Agreement provided for that status to be granted to extended family members as defined by article 3 on production of identity documents and "a document issued by the relevant authority in the host state" in accordance with article 3(2), namely the document facilitating their residence in the UK. That document was, in this case, the stamps placed in the passports by the immigration officers. Lewis LJ held:
63. In those circumstances, refusal by the Secretary of State to accept the document issued by the relevant national authorities did amount to a breach of the rights of Mr Vasa and Mr Hasanaj under Article 18(1)(l)(iv) of the Withdrawal Agreement. Their appeals against the decision to refuse their applications under the Settlement Scheme should therefore have been allowed.
As to article 10(2) of the Agreement, the SSHD argued that it referred to residence being facilitated in accordance with national legislation in accordance with article 3(2) of the Citizens' Directive, the national legislation adopted to implement article 3(2) had been the 2016 Regulations, and the stamps had not been issued in accordance with the Regulations. However, Lewis LJ held that:
65. I do not consider that that approach does reflect a proper interpretation of Article 10 of the Withdrawal Agreement. The reference to national legislation reflects the fact that extended family members (those falling within Article 3 of the Directive and as defined by regulation 8 of the 2016 Regulations) did not derive rights of residence from EU law but from national law. The reference to "in accordance with its national legislation", and "a document issued by the relevant national authorities in the host state in accordance with Article 3(2)" are simply a recognition that the legal act or decision conferring the right to reside will be one taken under national law. Articles 10(2) and 18(1)(l)(iv) of the Withdrawal Agreement were not seeking to introduce a requirement that individuals seeking to continue rights granted prior to the end of the transition period had to demonstrate that those rights had been granted under national legislation which had, as a matter of domestic law, been properly interpreted and applied. There is no reason why the Withdrawal Agreement (which concerns the position of family members of EEA nationals the United Kingdom, and family members of UK nationals in other member states) would be concerned with ensuring that domestic legislation was in place and had been properly applied. Rather, the focus of the Withdrawal Agreement was that rights under EU law (for EU nationals and their family members as defined by Article 2 of the Directive) were protected after the end of the transition period and, similarly, that rights granted by relevant national authorities acting under national law (in the case of family members as defined by Article 3 of the Directive) were also protected where a new residence status was created as contemplated by Article 18 of the Withdrawal Agreement.
As to the status of passport stamps, the SSHD argued that they were only declaratory of rights; as Mr Vasa and Mr Hasanaj had no rights under the Regulations, the stamps were not sufficient to confer rights. The court considered where rights were derived from EU law, documents evidencing those rights were declaratory of the EU law rights. However, the present case concerned extended family members who had no rights to reside derived from EU law. Instead, they derived rights from national law and the decisions of national authorities.
As to the immigration officers' decisions, the SSHD submitted that these decisions had been legally flawed because they had been made on an erroneous factual basis or an error as to the scope of their powers. However, the decisions to admit had never been quashed. Decisions of public bodies were presumed to be valid and to produce legal effects unless quashed and the court followed Smith v East Elloe RDC [1956] AC 736. The immigration officers' decisions continued to produce legal effects, i.e. that the decisions had facilitated Mr Vasa and Mr Hasanaj's residence in the UK and that—in turn—had provided the basis for their claims to the new residence status created by the EU Settlement Scheme.
Comment
Lewis LJ emphasised that the purpose of the Withdrawal Agreement was that rights under EU law (for EU nationals and their family members under article 2 of the Directive) were protected after the end of the transition period and rights granted by relevant national authorities acting under national law (in the case of family members as defined by article 3 of the Directive) were protected where a new residence status was created as envisaged by article 18 of the Withdrawal Agreement.
He rejected the argument that article 10(2) of the Agreement referred to residence being facilitated in accordance with national legislation in accordance with article 3(2) of the Citizens' Directive, the national legislation adopted to implement article 3(2) had been the 2016 Regulations, and the stamps had not been issued in accordance with the Regulations.