(Please note this case relates to the rules which operated from 2006 which were revised on 1 February 2017 which now require a valid passport – see below.)
In the recent unreported case of Mr Darshan Nareshkumar Patel v the Secretary of the State for the Home Department, the Upper Tribunal (Immigration and Asylum Chamber) (“UT”) considered whether, under the 2006 EEA Regulations, the spouse of an EEA national has the right to appeal the Secretary of The State’s (“SSHD”) decision not to issue an EEA residence card to the spouse of an EEA national if the applicant’s valid passport was not submitted with the application.
The appellant, a citizen of India, applied for a residence card as the spouse of an EEA national exercising free movement rights in the UK. However, the SSHD refused his application because he did not submit his valid passport.
The SSHD based her decision on Regulation 17(1)(a) of the Immigration (European Economic Area) Regulations 2006 (“The Regulations 2006”) which provides that:
17. (1) The Secretary of State must issue a residence card to a person who is not an EEA national and is the family member of a qualified person or of an EEA national with a permanent right of residence under regulation 15 on application and production of—
(a) a valid passport
The appellant appealed the SSHD’s decision to the First Tier Tribunal (Immigration and Asylum Chamber) (“FTT”). On consideration of his appeal, the FTT noted that despite some enquiries made by the Appellant to renew his passport, he still had not obtained a valid document. On dismissing the Appellant’s appeal, the FTT referred to Regulation 26(2) of the Regulations 2006, which states that:
26. (2) If a person claims to be an EEA national, he may not appeal under these Regulations unless he produces a valid national identity card or passport issued by an EEA State.
The Appellant appealed the FTT decision to the UT on the grounds that in his decision the FTT judge quoted the wrong subparagraph of Regulation 26, as Regulation 26. (2) is only applicable to EEA nationals, which he was not. The UT judge noted that instead Regulation 26(3) should have been applied as it refers to a family member of an EEA national and requires the submission of a ‘passport’ as opposed to a ‘valid passport’. The UT Judge Kelly considered that although Regulation 17 requires the applicant applying for the EEA residence card to provide his valid passport, the fact that he failed to produce it should not obstruct his right of appeal. Judge Kelly noted that: “…the EEA Regulations fall to be interpreted in accordance with the Directive [2013/48/EU] that requires member states to ensure that the persons concerned have an effective right of appeal or review”. He then concluded that: “…as the Applicant had produced a passport (albeit not a current one) and he therefore fulfilled the requirements under Regulation 26 for making a valid appeal”. To this extent the appeal was allowed.
Please note that on 1 February 2017 the Regulations 2006 were replaced by the Immigration (European Economic Area) Regulations 2016 (“The Regulations 2016”). Part 6 of the Regulations 2016 governs Appeal rights and provides that:
36. (3) If a person claims to be in a durable relationship with an EEA national, that person may not appeal under these Regulations without producing—
(a) a valid passport; and
(i) an EEA family permit; or
(ii) sufficient evidence to satisfy the Secretary of State that the person is in a relationship with the EEA national.
As such, appeals from EEA family members under the Regulations 2016 would not be allowed if they are not able produce a valid passport (and other documents listed in Regulation 36(3) (b)(i) or (ii)).
Gherson are experts in dealing with applications under the EEA Regulations. Should you or a family member wish to speak to a member of our team please do not hesitate to contact us.
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