Case Law Article Highlights Importance of Correct Application Process for Extended Family Members Seeking Entry Clearance Post-Brexit

Citation: [2024] EWCA Civ 248
Judgment on

Introduction

The case of Tanjina Siddiqa v Entry Clearance Officer [2024] EWCA Civ 248 addresses the interpretation and application of the Withdrawal Agreement following the United Kingdom’s exit from the European Union, in relation to the rights of extended family members who seek entry clearance. The judgment explores substantive issues concerning the application process under the EU Settlement Scheme (EUSS) and the EEA family permit scheme, as detailed under the Immigration (European Economic Area) Regulations 2016, known as the 2016 Regulations.

Key Facts

Tanjina Siddiqa, a national of Bangladesh and sister to an EU citizen residing in the UK, applied for entry clearance under the EUSS family permit scheme shortly before the Brexit transition period concluded. The application was refused on the basis that Siddiqa was not a ‘close family member’ as defined by the scheme but might have qualified as an ‘extended family member’ under the 2016 Regulations. The Entry Clearance Officer (ECO) did not accept Siddiqa’s application as made under the EEA family permit scheme and therefore it was rejected.

Subsequently, Siddiqa made an appeal that her application should have been treated as if made under the 2016 Regulations. This appeal raised questions regarding the obligations under the Withdrawal Agreement and the individual rights of extended family members during the transition period.

The court examined multiple legal principles in its considerations:

  1. Facilitation of Entry for Extended Family Members: It was recognized that EU law allowed member states discretion in implementing the Citizens’ Rights Directive’s requirements to facilitate the entry of extended family members, as provided under Article 3(2).

  2. Application and Appeal Rights under Domestic Law: The case confirmed the principle that applicants are expected to correctly apply for the relevant immigration scheme and that appeals shall be based sufficiently only on the application at hand, not on what could have been applied for.

  3. Interpretation of the Withdrawal Agreement: Emphasis was placed on the proper interpretation of the Withdrawal Agreement’s provisions, notably Articles 10 and 18, which concern the rights of family members of EU citizens and the ability to maintain or acquire residency after the Brexit transition.

  4. Scope and Limitation of Legal Remedies: The case discussed to what extent judicial remedies are available under the Withdrawal Agreement for applicants like Siddiqa, and whether there are enforceable rights to have errors in the application process corrected.

  5. Applicability of Article 18 of the Withdrawal Agreement: The court assessed whether Article 18 applied to Siddiqa’s application, specifically whether it imposed obligations on the Secretary of State to correct any deficiencies in her application.

Outcomes

The court’s judgment resulted in several outcomes:

  1. Valid Application Under Domestic Law: Firstly, it was held that Siddiqa had not validly applied under the EEA family permit scheme according to the 2016 Regulations. Her application was treated as, and was indeed, an application under the EUSS family permit scheme since she selected that option.

  2. Article 18 not Applicable: Secondly, the court clarified that Article 18 of the Withdrawal Agreement did not apply to Siddiqa’s application because this article only pertained to extended family members whose entry had already been facilitated under the EEA family permit scheme before the end of the transition period.

  3. Articles 10(3) and 10(5) Proceedings: Finally, the court concluded that, even if Siddiqa fell within the scope of Article 10(3), her application was not infringed under Articles 10(3) and (5) of the Withdrawal Agreement, as there was an extensive examination and justified denial of her application.

Conclusion

The Court of Appeal decision in Tanjina Siddiqa v Entry Clearance Officer clarifies and underscores the importance of making the correct application under domestic law and provides guidance on the interpretation of the Withdrawal Agreement in the context of extended family members seeking entry to the UK post-Brexit. The judgment outlines that the rights under Article 18 of the Withdrawal Agreement are not applicable to applicants like Siddiqa, whose applications under the EUSS were correctly refused since they did not qualify under this scheme and were not facilitated under the pre-existing EEA rules. As such, the appeal was dismissed, reinforcing the principle that the legal remedies provided under the Withdrawal Agreement are subject to strict adherence to the application procedures set by domestic law.

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