The Secretary of State for the Home Department v Have Rexhaj
[2024] EWCA Civ 784
Shaun Emambux v Secretary of State for the Home Department
28 November 2024
[2024] EWCA Civ 1459
Court of Appeal
A man from Mauritius tried to stay in the UK because he married a French woman. His application was rejected because he didn't prove they were married properly. The court said the government wasn't required to help him fix his application and refused to send the case to a European court.
Key Facts
- •Mr. Emambux, a Mauritian national, applied for leave to remain in the UK under the EU Settlement Scheme (EUSS) based on his marriage to a French national.
- •His application was refused because he did not provide sufficient evidence of a legally recognized marriage.
- •Mr. Emambux appealed to the Upper Tribunal (UT), which dismissed his appeal.
- •He appealed to the Court of Appeal, arguing that the Secretary of State should have treated his application as one under the Immigration (European Economic Area) Regulations 2016 (2016 Regulations).
- •He also argued for a referral to the Court of Justice of the European Union (CJEU).
Legal Principles
The Withdrawal Agreement and the 2016 Regulations govern the rights of EEA citizens and their family members to reside in the UK.
European Union (Withdrawal Agreement) Act 2020, Immigration (European Economic Area) Regulations 2016, Withdrawal Agreement
The Secretary of State is not obligated to advise applicants on alternative application routes.
Siddiqa v Entry Clearance Officer [2024] EWCA Civ 248, CS (Brazil) v Secretary of State for the Home Department [2009] EWCA Civ 480
Applications must be made in accordance with the relevant regulations; the Secretary of State is not required to treat an incorrectly filed application as if it were filed correctly.
Regulation 21(4) of the 2016 Regulations, Siddiqa v Entry Clearance Officer [2024] EWCA Civ 248, Batool and others [2022] UKUT 219
References to the CJEU are only possible under limited exceptions, post-Brexit.
Article 158(1) of the Withdrawal Agreement
Article 3(2) of the Citizens’ Rights Directive requires an extensive examination of personal circumstances and justification for refusal of residence applications for extended family members.
Citizens’ Rights Directive (Directive 2004/38/EC), Rahman v Secretary of State for the Home Department Case C-83/11, Banger v Secretary of State for the Home Department (Case C-89/17), Celik v Secretary of State for the Home Department [2023] EWCA Civ 921
Outcomes
The Court of Appeal dismissed Mr. Emambux's appeal.
Mr. Emambux's application was made under the EUSS and correctly refused as it lacked sufficient evidence. The Secretary of State had no duty to advise him to apply under the 2016 Regulations, particularly given his previous unsuccessful applications. A CJEU referral was deemed unnecessary.