More bad news from the Upper Tribunal for extended family members of EU citizens

What happens when you accidentally apply for an EU Settlement Scheme Family Permit when you meant to apply for an EEA Family Permit under the Immigration (EEA) Regulations 2016?

The answer: you are deprived of the benefit of the EU Settlement Scheme and the EU Withdrawal Agreement.

This is the effect of the Upper Tribunal’s decision in Siddiqa (other family members, EU exit) Bangladesh [2023] UKUT 47 (IAC).

Why are there two different types of application?

Before 31 December 2020 there were two legal regimes operating simultaneously: the EU Settlement Scheme under the UK’s immigration rules (“the EUSS”); and EU free movement law implemented in the UK by the Immigration (EEA) Regulations 2016 (“the 2016 Regulations”).

For EU nationals and their direct family members (i.e., spouses, children who are under 21 or dependant, and dependant parents), the 2016 Regulations were redundant. There was little point in applying for documentation under regulations which would cease to apply after the end of the Brexit transition period. It made more sense to apply under the EUSS.

More distant family members were in a different situation. They had to apply under the 2016 Regulations before 31 December 2020 before they could access the EUSS. There was, in effect, a two stage process with the 2016 Regulations acting as a gateway to the EUSS. This applied to unmarried partners, relatives who are dependent on the EU citizen, member of the EU citizen’s household, and those who require the personal care of the EU citizen on health grounds (referred to as extended or other family members).

As highlighted in Batool and others (other family members: EU exit) [2022] UKUT 00219 (IAC), the distinction between these two different types of family member was apparent from the eligibility criteria on the gov.uk website. However, it was not particularly obvious to an unrepresented applicant unfamiliar with the complexities of UK immigration law that an EUSS Family Permit and an EEA Family Permit were different things.

Making the wrong application

On 7 December 2020 Ms Siddiqa submitted an application to join her brother in the UK. She was, and still is, in Bangladesh. Her brother is a dual national of Bangladesh and Portugal and lives in the UK with status under the EUSS.

When completing her online application form Ms Siddiqa selected EUSS Family Permit as the application category. This was fatal to her application. She wasn’t eligible for an EUSS Family Permit as she was not a direct family member.

She meant to make an application for an EEA Family Permit under the 2016 Regulations. The EUSS option had been selected by mistake.

Can a clerical error with the click of a computer mouse commit someone to making an application which they know is doomed to fail?  

Conflicting Upper Tribunal decisions

In ECO v Ahmed and ors (unreported, UI-2022-002804-002809) the Upper Tribunal said no. In that case, the covering letter submitted with the application referred to the 2016 Regulations. It was obvious that was the basis of the application, even though it had been incorrectly labelled as an EUSS application.

In Ms Siddiqa’s case it was argued that, like in Ahmed, it was tolerably clear from the material submitted that the application was made under the 2016 Regulations. Ms Siddiqa was applying to join her brother: she was clearly applying as an extended family member rather than a direct family member.

The Upper Tribunal rejected this argument:

“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… 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 such, Ms Siddiqa had not made an application under the 2016 Regulations before 31 December 2020 and could not benefit from the EUSS. Her appeal was therefore dismissed.

Getting what you asked for

The Withdrawal Agreement requires the Home Office to:

1. Ensure that administrative procedures for applications are smooth, transparent and simple, and that any unnecessary administrative burdens are avoided (article 18(1)(e)).
2. Ensure that application forms are short, simple, and user friendly (article 18(1)(f)).
3. Help applicants to prove their eligibility and to avoid any errors or omissions in their applications; they must give applicants an opportunity to furnish supplementary evidence and to correct any deficiencies, errors or omissions (article 18(1)(o)).
4. Provide a right of appeal following refusal which ensures that decisions are proportionate (article 18(1)(r)).

The first, second, and fourth points were addressed in Batool. The Upper Tribunal held that:

“The guidance on www.gov.uk… shows that the Secretary of State has been at pains to provide potential applicants with the relevant information, in a simple form, including highlighting the crucial distinction between “close family members” and “extended family members”. That is a distinction which, as we have seen from the Directive and the case law, is enshrined in EU law. It is not a novel consequence of the United Kingdom’s leaving the EU. It is, accordingly, not possible to invoke sub-paragraphs (e) and (f) of Article 18 as authority for the proposition that the respondent should have treated one kind of application as an entirely different kind of application.”

In relation to proportionality, the Tribunal in Batool held that it is not disproportionate for the Home Office, faced with the scale of EUSS applications, to determine applications based on what an applicant specifically asks to be given.

In Siddiqa the Upper Tribunal relied on the same reasoning to dismiss an argument under article 18(1)(o). The provision must be read narrowly to exclude errors or omissions relating to the type of application made.

Ms Siddiqa asked for status under the EUSS. She wasn’t eligible for that. Her application was therefore correctly refused.