It’s the return of the “mystery” stamp! Though the Courtroom of Enchantment has come to a distinct conclusion than the Higher Tribunal did, holding that whereas a passport stamp didn’t quantity to a related doc for Appendix EU functions, the safety of the Withdrawal Settlement was engaged due to the stamp and that it had been breached right here. The case is Vasa v The Secretary of State for the Dwelling Division [2024] EWCA Civ 777.
Background
Mr Vasa is an Albanian nationwide born in Greece on 24 February 2004. On 13 September 2020 he travelled to the UK along with his older brother who’s a Greek nationwide who had been dwelling within the UK since 25 June 2018. On the British border management in Paris, his passport was stamped with the phrases “Admitted to the United Kingdom under the Immigration (EEA) Regulations 2016”.
On 15 September 2020 Mr Vasa made an utility to the EU Settlement Scheme. This was refused on 23 October 2020 as a result of he didn’t have a household allow or a residence card issued below the Immigration (EEA) Laws 2016. He didn’t attraction, however with the help of authorized representatives he submitted one other utility to the EU Settlement Scheme on 17 March 2021. This was refused for a similar purpose as the primary utility.
Mr Vasa appealed this refusal and the First-tier Tribunal dismissed the attraction. The Higher Tribunal then allowed his attraction on an faulty foundation, as agreed by each events. The Dwelling Secretary appealed that call to the Courtroom of Enchantment.
The second appellant, Mr Hasanaj can also be an Albanian nationwide, who had lived in Italy since round 2014 along with his sister who’s an Italian nationwide. He travelled to the UK together with her and arrived at Stansted on 26 March 2019 the place his passport was stamped with the identical wording as in Mr Vasa’s case.
Mr Hasanaj utilized to the EU Settlement Scheme on 29 June 2021 and the appliance was refused on 5 January 2022 as a result of he didn’t have a household allow or residence card. The First-tier Tribunal allowed his attraction and the Higher Tribunal then allowed the Dwelling Secretary’s attraction on 11 December 2022. Mr Hasanaj appealed to the Courtroom of Enchantment.
Each appellants argued “that admission pursuant to the stamp in their respective passports amounted to facilitation of residence within the meaning of Article 10(2) of the Withdrawal Agreement and refusal to grant pre-settled status under the Settlement Scheme involved a breach of their rights under Article 18 of the Withdrawal Agreement or was disproportionate”.
The Dwelling Secretary’s place was “that the references to “facilitated” and “facilitation” in Article 10(2) and (3) of the Withdrawal Settlement meant that an individual needed to have made an utility and been granted the appropriate to enter and reside in the UK pursuant to the 2016 Laws”. It was submitted that the stamps didn’t quantity to facilitation of residence.
The Courtroom of Enchantment
The reason supplied by the Dwelling Secretary was a bit extra detailed than the “shrouded in mystery” response within the Higher Tribunal in Allaraj, and was that:
the stamps in query had been meant to be used in instances the place a non-EEA member of the family (throughout the that means of Article 2 of the Directive) of an EEA nationwide exercising their rights below EU legislation to reside within the UK introduced themselves at a border and not using a household allow (using which was not necessary) and happy the immigration officer that they had been eligible to be admitted. She submitted that the stamps had been wrongly utilized in these two instances although it was not doable on the obtainable proof to ascertain how the error had occurred.
The Courtroom of Enchantment held that choices granting lawful entry had been made for the appellants, however the true subject was what rights had been granted together with entry, and to what extent these rights had been protected below the Withdrawal Settlement. The problems had been summarised as follows:
(1) whether or not the actions of an immigration officer permitting Mr Vasa and Mr Hasanaj to come back to the UK amounted to facilitation of residence throughout the that means of Article 10(2) of the Withdrawal Settlement; and if that’s the case,
(2) whether or not refusal of pre-settled standing below the EU Settlement Scheme would contain a breach of rights of Mr Vasa and Mr Hasanaj below the Withdrawal Settlement?
The Courtroom of Enchantment decided that the appellants had been granted lawful entry to the UK however that the passport stamps weren’t a “relevant document” below Appendix EU. The courtroom then turned to the Withdrawal Settlement, the place article 10(2) brings members of the family inside its scope if their residence “was facilitated by the host state … before the end of the transition period”.
The courtroom held that their residence had been facilitated, as choices had been made by public officers that the appellants had been allowed to enter and stay within the UK. Article 18(l)(1)(iv) of the Withdrawal Settlement then gives for prolonged members of the family to be coated on manufacturing of a doc facilitating their residence within the UK, which on this case was the passport stamp.
The courtroom concluded that there had been a breach of the appellants’ rights below the Withdrawal Settlement and that their appeals ought to have been allowed.
Conclusion
I nonetheless have many questions on the stamp. Primarily what number of EUSS functions have been rejected due to using this stamp and is the Dwelling Workplace now taking steps to treatment this? Are there individuals who have been rejected on this foundation and since left the UK? It appears solely doable.
