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The Court of Appeal has allowed an appeal by the Secretary of State from a decision of the Upper Tribunal, in a case addressing the relationship between Appendix EU and Appendix EU (FP) to the Immigration Rules: Rexhaj v Secretary of State for the Home Department [2024] EWCA Civ 784.
Ms Rexhaj had entered the UK with entry clearance granted under Appendix EU (FP), and then made a second application for leave to remain under Appendix EU. The issue was whether she needed to show dependency in that second application, which turned on the question whether she had been granted leave to enter under Appendix EU on the one hand, or under Appendix EU (FP) on the other. At the time she made the first application, Ms Rexhaj benefited from a concession that dependency did not need to be shown, but that concession had been withdrawn by the time she made her second application.
Allowing the Secretary of State’s appeal, the Court of Appeal held that Ms Rexhaj’s entry clearance, granted under Appendix EU (FP), had converted into leave to enter at the border, and thus it was “natural and correct to describe Mrs Rexhaj’s leave to enter as having been granted “under” Appendix EU (FP) … Appendix EU has nothing to do with it.” Therefore, Ms Rexhaj needed to demonstrate dependency to succeed in her application for leave to remain, and the Upper Tribunal’s conclusion to the contrary was wrong. The Court rejected an argument that this produced unfairness, because “[t]he expiry of the concession, under both Appendices, on 30 June 2021 was explicit from the moment that they were introduced in October 2020. Applicants were able to make their choices on that basis.”
The Court refused to permit the Aire Centre, which intervened, to advance a discrimination argument which had not been advanced in the tribunals below, and for which evidence would have been required.
The judgment can be found here.
A summary and recording of the proceedings can be found here.
Julia Smyth represented the Secretary of State
