Upper Tribunal Considers Extended Family Members and the EU Settlement Scheme

The case of Batool and Others (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).

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.

Contact our Immigration Solicitors

To discuss your application or appeal in relation to the EU Settlement Scheme, please contact our immigration solicitors on 020 8240 9018 or via the enquiry form on our website.