Background
Tajamal Hazoor Randhawa, a Pakistani national, claimed to be financially dependent on his Italian-national brother. Italian authorities had issued him a residence card as a family member of a Union citizen. In December 2019, the brothers travelled to the United Kingdom, where Mr Randhawa showed an immigration officer his passport and Italian residence card. After scanning the passports, the officer said “you can go,” placed no stamp in Mr Randhawa’s passport, and allowed them through border control.
Mr Randhawa subsequently made several unsuccessful applications for pre-settled status under the EU Settlement Scheme. The First-tier Tribunal allowed his appeal from the fourth refusal, but the Upper Tribunal set that decision aside and dismissed the appeal. Mr Randhawa argued that the border officer’s conduct had facilitated his residence under domestic law, bringing him within Article 10(2) of the EU-UK Withdrawal Agreement, and that the United Kingdom had effectively adopted his Italian residence card as evidence of that decision.
The Court’s Holding
The Court of Appeal unanimously dismissed the appeal, although it held that four of the Upper Tribunal’s five reasons were wrong. As an extended family member rather than a “family member” within the Directive’s narrower definition, Mr Randhawa had no EU-law right to enter or reside in the United Kingdom. Regulations 11 and 29 of the Immigration (European Economic Area) Regulations 2016 likewise did not confer a discretionary domestic-law power to admit him: regulation 29 was procedural, and an extended family member ordinarily needed a UK-issued EEA family permit or residence card.
Objectively, the border officer had not facilitated Mr Randhawa’s residence under domestic law. The natural inference was that the officer mistakenly believed the Italian residence card gave Mr Randhawa an EU-law right of entry. Unlike the passport stamps in Vasa and Hasanaj, the words “you can go” did not evidence a domestic-law decision granting residence. Mr Randhawa therefore fell outside Article 10(2) of the Withdrawal Agreement.
The Court further held that Article 18(1)(l)(iv) permits the United Kingdom to require properly documented evidence that its authorities granted a right of residence. Mr Randhawa had no such document, and his Italian residence card evidenced a right to reside in Italy, not a right issued by UK authorities to reside in the United Kingdom. He consequently could not use the Withdrawal Agreement to overcome the EUSS documentary requirements.
Key Takeaways
- An extended family member’s foreign Article 10 residence card does not itself confer a right to enter or reside in the United Kingdom.
- Merely allowing a person through border control, without more, does not establish that UK authorities facilitated residence under domestic law for Article 10(2) of the Withdrawal Agreement.
- An EUSS applicant relying on facilitated residence may be required to produce documentary evidence issued by the relevant UK authority; an oral statement such as “you can go” is insufficient.
Why It Matters
The decision clarifies the boundary between mistaken admission at the border and a legally operative decision facilitating an extended family member’s residence. It also distinguishes Vasa and Hasanaj, where official passport stamps objectively documented admission under the domestic EEA Regulations.
For EUSS cases involving extended family members, physical entry and continued residence are not enough. Protection under the Withdrawal Agreement depends on facilitation in accordance with domestic law, supported by an appropriate document from UK authorities.