The Secretary of State for the Home Department v Have Rexhaj
[2024] EWCA Civ 784
Secretary of State for the Home Department v Pritam Kumar Nagdev & Anor
15 February 2024
[2024] UKUT 101 (IAC)
Upper Tribunal
A family's appeal for permanent UK residency was rejected because their son (who sponsored them) lost his EU citizenship. The court ruled that because they weren't being deported, special protections for EU citizens didn't apply, even though the family had lived in the UK for a long time.
Key Facts
- •Mr and Mrs Nagdev (appellants) appealed the refusal of their permanent residence card applications.
- •Their applications were refused because they failed to provide adequate evidence of their sponsor's (son's) EEA nationality.
- •Their son, Kapil Nagdev, had his Austrian citizenship revoked in 2012.
- •The First-tier Tribunal allowed the appeals, finding the refusal disproportionate.
- •The Secretary of State appealed to the Upper Tribunal.
- •The appellants' sponsor had previously been granted permanent residence in the UK.
Legal Principles
The procedural safeguards in the Citizens' Rights Directive (Chenchooliah) apply only where there is an expulsion decision.
Chenchooliah v Minister for Justice and Equality [2019] EUECJ C-94/18
A decision refusing a permanent residence card does not trigger the proportionality test under the Citizens' Rights Directive unless it is coupled with an expulsion decision.
This case (Nagdev)
The saving provisions in Schedule 3 to the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 limit the grounds of appeal to breaches of the 2016 Regulations.
Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020
Outcomes
The Upper Tribunal allowed the Secretary of State's appeal.
The First-tier Tribunal erred in applying the proportionality test from Chenchooliah because there was no expulsion decision. The appellants had no right to permanent residence as their sponsor was no longer an EU citizen, and their application for permanent residence cards was refused on legitimate grounds.
The First-tier Tribunal's decision was set aside.
The First-tier Tribunal incorrectly applied the proportionality test from Chenchooliah in the absence of an expulsion order.
The appellants' appeals were dismissed.
The appellants did not have a right to reside or a right to permanent residence in the UK.
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