The case of Batool and Ors (other family members: EU Exit) [2022] promulgated on 19 July 2022 relates to the position of 'other family members' under the EU Settlement Scheme (EUSS). It is one of the first published decisions relating to issues arising under the EUSS.

The headnote in Batool and Others reads:

(1) An extended (oka other) family member whose entry and residence was not being facilitated by the United Kingdom before 11pm GMT on 31 December 2020 and who had not applied for facilitation of entry and residence before that time, cannot rely upon the Withdrawal Agreement or the immigration rules in order to succeed in an appeal under the Immigration (Citizens' Rights Appeals) (EU Exit) Regulations 2020.

(2) Such a person has no right to have any application they have made for settlement as a family member treated as an application for facilitation and residence as an extended/other family member.

Legal Background to the Case of Batool and Others

Family members and Other/ Extended family members

Directive 2004/38/EC (relating to the Free Movement of EU citizens and their family members) provides for two categories of 'family member'.

'Family members' are defined as a spouse or civil partner, direct descendants under the age of 21 or who are dependants of the EU citizen of their partner, and dependent direct relatives in the ascending line of the EU citizen or their partner. Family members enjoy an automatic right of entry and residence.

'Other family members' are dependants or members of the household of the EU citizen, or those who strictly require personal care due to serious health grounds. Durable partners also fall within this category. When considering 'other family members' the Member State must 'undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people'. It must 'facilitate entry and residence' for such persons, but there is no automatic right of entry or residence, or obligation to grant entry.

The 2016 EEA Regulations which implemented the Directive, referred to 'other family members' using different terminology – 'extended family members'. Once a person had made an application and been considered to meet the relevant criteria through the issue of a residence card, they were to be treated as a 'family member', which would continue as long as they continued to meet the underlying criteria.

The Withdrawal Agreement

The Withdrawal Agreement made provisions in relation to the rights of citizens and their family members following Brexit. It also allowed States to introduce 'residence schemes' requiring an application to be made to enable them to continue to reside in the relevant Member State following Brexit. The UK introduced the EU Settlement Scheme for this purpose.

Article 10 sets out the personal scope of the Withdrawal Agreement i.e. the categories of people that would be able to continue to live in the UK after Brexit. This includes 'family members' (as defined in Article 10(1)(e)) and in Article 10(2) persons falling under the definition of 'other family members' at Article 3(2) of the Directive provided that they 'have applied for facilitation of entry and residence before the end of the transition period, and whose residence is being facilitated by the host State in accordance with its national legislation thereafter'.

Factual background in the Batool and Others Case

The four Appellants were all minors at the date of application and applied under Appendix EU (Family Permit) to join a Romanian citizen in the UK. The applications were sponsored by Persida Sultan, their aunt through marriage to their paternal uncle Zahoor Sultan.

The Appellants are two sets of siblings. Their mothers lived separately in Pakistan with their own families and their fathers were also living separately. The Appellants were living with their paternal grandparents and were cared for by them.

Their grandparents successfully applied for EUSS Family Permits, as the dependent direct relatives in the ascending line of the Spouse (Zahoor Sultan) of a relevant EEA citizen (Persida Sultan). They travelled to the UK on 17 July 2020 and in their absence a local woman was employed to look after the Appellants. The grandparents returned to Pakistan on 21 December 2020.

The children's applications, made on 03 February 2020, were refused on 20 February 2020, as they did not meet the definition of 'family member' within Appendix EU(Family Permit).

First Tier Tribunal decision in Batool and Others

At the First-tier Tribunal appeal, the Appellants' representative conceded that they were unable to meet the eligibility criteria in Appendix EU (Family Permit). Therefore the only ground on which the appeal could proceed was on human rights grounds, that the decisions were incompatible with Article 8 ECHR (right to respect for private and family life). The ECO consented to this being raised as a 'new matter'.

First-tier Tribunal Judge Higgins found that although the Appellants' grandparents were dependent on the money given by Zahoor and Persida Sultan to meet their essential needs, the Appellants had not shown anything more than the normal emotional ties that exist between an uncle and his nephews and nieces and as such refusal of their Family Permits was compatible with Article 8 ECHR.

Upper Tribunal findings in Batool and Others

The appeal was heard in the Upper Tribunal (UT) by the Hon. Mr Justice Lane (president) and Upper Tribunal Judge Lesley Smith.

The Appellants' new representatives sought to withdraw the earlier concession and argued that they did in fact meet the definition of 'family member of a relevant EEA citizen' as the definition should be interpreted in light of the Withdrawal Agreement, which required residence documents to be issued to extended family members. They argued that their applications for EUSS Family Permits were applications to 'facilitate entry and residence' within the meaning of 10(3) of the Withdrawal Agreement.

It was argued that the reference to 'national legislation' was to the EU Settlement Scheme, and not to the 2016 EEA Regulations. Finally, they argued that the application should have been treated as an application pursuant to the 2016 Regulations.

The Upper Tribunal permitted the concession to be withdrawn on the basis that the case raised wider issues. It upheld the finding that the Appellents did not meet the definition of 'family member' in Appendix EU (Family Permit) and found that they did not fall within the scope of Article 18(1) of the Withdrawal Agreement (those to whom residence documents should be issued).

The Appellants had not made applications 'for facilitation of entry and residence' before the end of the transition period within the meaning of the Withdrawal Agreement as the reference to Article 3(2)(a) and (b) of the Directive means this relates to persons applying as 'other family members'. However, the applications were clearly made on the basis of the Appellants being 'family members' and therefore were not for 'facilitation' of entry as other family members.

If they had applied as extended family members under the 2016 EEA Regulations, the Secretary of State would have had to consider whether to facilitate their entry. The UT rejected the argument, which was made relying on Articles 18(e) and (f) of the Withdrawal Agreement relating to simple administrative procedures, and the requirement that forms be short, simple and user-friendly; that the applications should have been considered as applications under the EEA regulations in any event. The UT considered that the guidance published by the government made a clear distinction between the applications to be made by 'close family members' and 'extended family members, which had always been distinct categories in EU law, and the Withdrawal Agreement could not be relied on to treat one application as a different application.

Human Rights and Best Interests of the Child

The Appellants also argued that Article 7 and 24 of the Charter of Fundamental Rights of the EU should have been considered, as well as the corresponding rights in Article 8 ECHR and section 55 Borders, Citizenship and Immigration Act 2009 (Best interests of the Child). They argued that the appeals contained an underlying Article 8 ECHR claim and therefore no consent was required to consider this as a 'new matter'.

The UT referred to Celik (see our earlier post here) in relation to the Tribunal's jurisdiction to consider a human rights ground in an EUSS appeal, if the Secretary of State consents to this as a 'new matter'. It found that consent would be necessary given that Appendix EU and Appendix EU (Family Permit) do not intend to give effect to Article 8 ECHR and therefore this is not part of the decision-making process when considering EUSS applications. The refusal to grant the Appellants' applications cannot be considered to be refusals of human rights claims. As such, in appeals against the refusal of leave under Appendix EU or Appendix EU (Family Permit), the Appellant will generally always need to raise human rights as a 'new matter' and seek consent from the Secretary of State if they want this to be considered by the Tribunal.

The UT considered that the EU Charter was not applicable to the appeals as it ceased to be part of UK law on 31 December 2020 – any savings relate to fundamental rights or principles which exist irrespective of the Charter. As such the corresponding right in Article 8 ECHR continues to apply instead of Article 7 of the Charter. Section 55 was not considered to be relevant to consideration of this appeal as it is not a ground of appeal, and no explanation was given as to how the decisions could have been different merely as the Appellants were children.

Commentary on Batool and Others

The Appellants in this case had several opportunities to make applications for EEA Family Permits pursuant to the 2016 EEA Regulations as 'extended family members' prior to the deadline – at the time of making their applications for EUSS Family Permits, and upon receipt of the refusal decisions (and the 7-8 month period after this, which they instead spent lodging an appeal and awaiting the hearing). The Home Office would then have been obliged to undertake an 'extensive examination' of their personal circumstances in deciding whether or not to facilitate their entry and residence to the UK.

The fundamental issue was that they made the 'wrong' application and attempts to rely directly on the Withdrawal Agreement, or on human rights arguments more generally failed. This cannot now be resolved as the deadline for extended family members to apply under the EEA Regulations has now passed (31 December 2020). This route is now closed.

The principle established applies equally to other types of 'extended family member' which also includes 'durable partners'. However, due to how this is defined, there may be other options still available to this type of extended family member.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.