The court docket has held {that a} father or mother granted a household allow beneath the EU Settlement Scheme based mostly on assumed dependency should present precise dependency to get go away to stay when making use of after 1 July 2021. That call is Secretary of State for the Residence Division v Rexhaj [2024] EWCA Civ 784.
Background
Mrs Rexhaj is 60-year-old Albanian citizen who relied on her daughter-in-law, Mrs Prednicea, a Romanian nationwide with go away beneath the EU Settlement Scheme, as her sponsor.
On 21 June 2021, Mrs Rexhaj utilized from Albania for a household allow beneath Appendix EU (Household Allow). Within the type she said that she was counting on monetary assist from the sponsor, although it isn’t clear whether or not any proof of this was supplied.
On 15 November 2021, the appliance was profitable and she or he was granted a six-month vignette to affix her daughter within the UK.
She entered the UK on 25 December 2021 and on 2 January 2022, utilized beneath the EU Settlement Scheme for go away to stay as a dependant of her daughter-in-law. She returned to Albania and has not been again to the UK since.
On 12 April 2022, Mrs Rexhaj’s software was refused on the bottom that she had failed to point out she was depending on her sponsor.
She appealed the refusal to the First-tier Tribunal on the premise that she was not required to show dependency and alternatively, if that was not the case, then she had glad the requirement. On 12 October 2022, the First-tier Tribunal dismissed her enchantment on each points.
Mrs Rexhaj appealed to the Higher Tribunal, once more on the premise that she was not topic to a dependency requirement. The Higher Tribunal agreed and on 23 April 2023, allowed her enchantment on this level. It additionally put aside the First-tier Tribunal’s factual discovering that she didn’t fulfill the dependency requirement, on the premise that the requirement didn’t apply to her.
Courtroom of Enchantment
The primary situation earlier than the court docket was the interpretation of the Appendix EU guidelines on the time of Mrs Rexhaj’s go away to stay software. Particularly, sub-paragraph (c) of the definition of “dependent parent” in Annex 1:
- the direct relative within the ascending line of a related EEA citizen … or of their partner or civil companion; and
- (until sub-paragraph (c) instantly under applies) depending on (because the case could also be):
- …; or
- …; or
- on the related sponsor (or on their partner or civil companion) on the date of software and … that dependency is assumed the place the date of software is earlier than 1 July 2021 [my italics]; and
- this sub-paragraph applies (and the applicant subsequently has to fulfill no requirement as to dependency) the place:
- the applicant was beforehand granted restricted go away to enter or stay beneath this Appendix as a dependent father or mother, and that go away has not lapsed or been cancelled, curtailed or invalidated
Successfully, previous to June 2021, dependency was assumed and so no proof needed to be produced to show dependency in these kind of functions. On 1 July 2021, the Residence Workplace modified the principles in order that the place an software was made after this date, dependency was now not assumed and to succeed, an applicant must present proof that glad the Residence Workplace that the dependency requirement was met.
Nonetheless, the impact of sub-paragraph (c)(1) was that if the applicant was making use of after 1 July 2021 however was beforehand granted go away beneath “this Appendix”, they might depend on the earlier assumption of dependency with out having to show it. So if Mrs Rexhaj was in actual fact granted go away “under this Appendix” – that’s to say, Appendix EU – when she was granted a household allow, the requirement to show dependency wouldn’t apply to her.
The court docket held that though Appendix EU and Appendix EU (Household Allow) work in tandem to a point, they’re separate appendices of the immigration guidelines and so it can’t be mentioned {that a} grant beneath Appendix EU (Household Allow) constitutes a grant beneath Appendix EU:
51. … the actual fact stays that Appendix EU solely offers for go away to enter in restricted and particular circumstances the place the applicant can fulfill the necessities of the provisions which I’ve set out. What it definitely doesn’t do is present for the generality of non-EEA residents outdoors the UK to have the ability to apply for go away to enter or, extra significantly, for individuals who’ve obtained entry clearance beneath Appendix EU (FP) to have the ability to accomplish that…
52. That evaluation is given some additional assist by the phrases of paragraph FP11 of Appendix EU (FP), which reads:
“Annex 3 applies in respect of the revocation of an entry clearance that was granted under this Appendix, and of the cancellation and curtailment of leave to enter granted by virtue of having arrived in the UK with an entry clearance that was granted under this Appendix.”I needn’t summarise the phrases of Annex 3. What issues for our functions is that it makes provision not solely in regards to the revocation of the entry clearance granted by a household allow but in addition in regards to the cancellation and curtailment of any go away to enter granted by advantage of getting arrived within the UK with such an entry clearance. If the Higher Tribunal have been proper that go away to enter in such a case have been granted beneath Appendix EU, one would anticipate the provisions in query to seem there and never in Appendix EU (FP).
For that cause, Mrs Rexhaj can’t be mentioned to have been granted go away “under this Appendix” (that means Appendix EU) as she was really granted go away beneath Appendix EU (Household Allow). The impact of that is that she is just not exempt from Appendix EU’s post-1 July 2021 requirement to proof her dependency on her sponsor.
Poor drafting
Appendix EU and Appendix EU (Household Allow) are notorious for being terribly drafted. Ask any immigration lawyer in regards to the definitions part and watch their eyes glaze over with the type of the ache and trauma that’s often solely seen in warfare veterans and canines experiencing their first Man Fawkes evening.
Not the primary time, the court docket has agreed:
58. […] This isn’t, sadly, this Courtroom’s solely expertise of poor liaison between these with coverage duty for drafting and making use of the Immigration Guidelines and the presenting officers and counsel who’ve to clarify them within the tribunals or the courts. The potential for confusion and inconsistency is all of the higher the place, as within the case of the EUSS, the drafting of the Guidelines is especially complicated and obscure.
Conclusion
The impact of this choice is that anybody who was granted a household allow on the premise of assumed dependency who after 1 July 2021 utilized or is making use of for go away beneath Appendix EU must satisfactorily proof their dependency. Nonetheless, this won’t apply to candidates who have been beforehand granted go away beneath Appendix EU after they apply for settled standing, as they will proceed to depend on assumed dependency.
This isn’t a very stunning choice, although something that clarifies the EU Settlement Scheme guidelines is at all times an excellent factor for each candidates and practitioners.
