Secretary of State for the Home Department v MD & Ors
[2024] UKUT 64 (IAC)
The Secretary of State for the Home Department v Have Rexhaj
11 July 2024
[2024] EWCA Civ 784
Court of Appeal
A non-EU citizen's application for UK residency based on family ties was challenged. The court decided that the initial permit was for entry, not residency, and so stricter rules applied. The lower court's decision was overturned, and the case will be reviewed again due to unfairness in the process.
Key Facts
- •Mrs Have Rexhaj, an Albanian citizen, applied for settlement rights in the UK based on her relationship with her Romanian daughter-in-law, who has EUSS rights.
- •Mrs Rexhaj followed a two-stage process: applying for an EU Settlement Scheme Family Permit (Appendix EU (FP)) and then applying for leave to remain under the EUSS (Appendix EU).
- •Her application for leave to remain was refused because she failed to demonstrate dependency on her daughter-in-law, which the Secretary of State believed was a requirement.
- •The Upper Tribunal ruled that dependency was not required, interpreting the rules to mean that the family permit granted leave to enter under Appendix EU, thus triggering an exception to the dependency requirement.
- •The Secretary of State appealed this decision.
Legal Principles
Immigration Rules are to be interpreted sensibly according to the natural and ordinary meaning of the words used, recognizing that they are statements of the Secretary of State’s administrative policy.
Mahad v Entry Clearance Officer [2009] UKSC 16 at para. 10
Under UK immigration law, entry clearance and leave to enter are intrinsically linked; the grant of one automatically implies the other.
Immigration Act 1971, Section 3, 3A; Immigration (Leave to Enter and Remain) Order 2000
The Withdrawal Agreement does not require the UK to grant settlement to non-dependent parents-in-law of EU citizens.
Withdrawal Agreement, Article 10.1, Article 2(2) of Directive 2004/38/EC
Outcomes
The Court of Appeal allowed the Secretary of State’s appeal.
The Court found that Mrs Rexhaj’s leave to enter was granted under Appendix EU (FP), not Appendix EU. The grant of entry clearance under Appendix EU (FP), coupled with the 2000 Order, automatically constituted leave to enter. Therefore, the exception to the dependency requirement did not apply.
The case was remitted to the Upper Tribunal to determine the procedural fairness of the First-tier Tribunal’s decision on the factual issue.
The Secretary of State conceded that the First-tier Tribunal's decision was procedurally unfair.
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