Automated Summary
Key Facts
The appeal concerns Wayne Lee Greyling, a South African national, who was refused EU Settlement Scheme (EUSS) status by the Secretary of State. He argued he is entitled to status under the Withdrawal Agreement as the 'Zambrano' carer of his two Irish stepchildren, Jemma and Rocco, with whom he lived in South Africa before relocating to the UK in 2021. The family obtained family permits in December 2020 to join the children in the UK, but the Appellant's EUSS application was refused in October 2022. His partner, Joanna, and child [A] were granted pre-settled status under Appendix EU. The First-tier Tribunal initially allowed the appeal based on proportionality under Article 18 of the Withdrawal Agreement, but the Upper Tribunal overturned this, finding an error of law regarding the Appellant's eligibility under Article 10. The key factual dispute centers on whether the Appellant's residence was 'facilitated' under EU law and whether his status as a carer of Irish nationals grants him rights under the Withdrawal Agreement.
Issues
- The Tribunal examined whether the First-tier Judge erred in concluding the Appellant's entry and residence were 'facilitated' under Article 10 of the Withdrawal Agreement. The core issue centered on whether the family permit granted as a 'Zambrano' carer (not an extended family member) could qualify for facilitation under the Agreement's terms, which require facilitation as an extended family member under Directive 2004/38/EC.
- The Tribunal assessed whether the First-tier Judge correctly applied the proportionality principle under Article 18 of the Withdrawal Agreement. The Court of Appeal's Celik judgment was cited to clarify that proportionality cannot confer residence rights where no legal basis exists, as the Appellant was not within the personal scope of the Agreement.
- The Appellant relied on Zambrano carer rights for his stepchildren and Chen derivative rights. The Tribunal concluded these rights are not recognized under the Withdrawal Agreement, which explicitly excludes Zambrano rights and limits Chen rights to specific scenarios not applicable here (e.g., children in education in the host state before 2020).
- The Tribunal analyzed whether the Appellant, as a non-extended family member (not a spouse, descendant, or dependent), could derive rights under the Withdrawal Agreement. It emphasized that extended family members (Article 3(2) of the Directive) are explicitly covered, while others (Article 9(a)(ii)) require EU nationals to rely on their own rights, which Jemma and Rocco lacked under the Agreement.
- The Appellant argued the family permits and pre-settled status granted to his partner and child created a legitimate expectation of continued rights. The Tribunal noted that public authority guidance and mistaken permits do not override legal requirements under the Withdrawal Agreement, though the issue was not directly resolved as it fell outside the appeal's scope.
Holdings
The Upper Tribunal Judge found that the First-tier Tribunal's decision contained an error of law regarding the Appellant's entitlement to status under the Withdrawal Agreement. The Judge concluded that the Appellant is not within the personal scope of the Withdrawal Agreement because his residence in the UK was not facilitated as an extended family member under Article 10. The Judge also determined that Article 18's proportionality principle cannot confer rights if the individual is not within the Agreement's scope. The appeal was dismissed as the Respondent's decision does not breach the Appellant's rights under the Withdrawal Agreement.
Remedies
- The decision of First-tier Tribunal Judge Aldridge promulgated on 3 August 2023 contains an error of law. I set that decision aside.
- The Appellant's appeal is dismissed as he is not entitled to status under the EU Settlement Scheme based on the legal analysis provided.
Legal Principles
- The Tribunal addressed the Appellant's claim of legitimate expectation based on the grant of family permits and pre-settled status to his partner and child. The Judge noted that if the permits were issued in error, the Respondent is not obligated to replicate the mistake. Additionally, the Appellant's appeal did not raise legitimate expectation as a standalone issue but rather as part of a proportionality argument, which was rejected due to his lack of rights under the Withdrawal Agreement.
- The Upper Tribunal applied the principle of proportionality under the Withdrawal Agreement, finding that the First-tier Tribunal's decision to allow the appeal was based on an error of law. The Judge determined that the Appellant's entry into the UK was not 'facilitated' under Article 10 of the Withdrawal Agreement, as he is not an extended family member of EU nationals who resided in the UK by the specified date. The Court of Appeal in Celik clarified that proportionality cannot confer residence rights where no existing legal basis exists. The Tribunal also concluded that the Appellant's claim under Article 18 (proportionality) was invalid because he lacked personal scope under the Agreement.
Precedent Name
- Vasa and another v Secretary of State for the Home Department
- Batool & Ors (other family members; EU exit)
- Celik (EU exit; marriage; human rights)
- R (on the application of Begbie) v Department of Education and Employment
Cited Statute
- Primary legislation governing immigration in the UK.
- EU Directive on the right of citizens of the Union and their family members to move and reside freely.
- International treaty protecting human rights and fundamental freedoms.
- The legal framework governing rights of EU nationals and family members post-Brexit.
- Regulations implementing EU free movement rights in the UK immigration system.
Judge Name
- Deputy Upper Tribunal Judge Farrelly
- L K Smith
Passage Text
- persons other than those defined in Article 3(2) of Directive 2004/38/EC whose presence is required by Union citizens or United Kingdom nationals in order not to deprive those Union citizens or United Kingdom nationals of a right of residence granted by this Part; ... the Union citizens here (Jemma and Rocco) themselves do not have any rights under the Withdrawal Agreement.
- the principle of proportionality is not intended to lead to the conferment of residence status on people who would not otherwise have any rights to reside. ... the Appellant cannot pray in aid the proportionality principle in Article 18 of the agreement in order to succeed.
- The decision of First-tier Tribunal Judge Aldridge promulgated on 3 August 2023 contains an error of law. I set that decision aside. I re-make the decision by dismissing the Appellant's (Mr Greyling's) appeal.