News

In a significant victory for Duncan Lewis Solicitors, the Court of Appeal has ruled that the refusal of pre-settled status under the EU Settlement Scheme (EUSS) for Mr. Vasa was a breach of the Withdrawal Agreement.

Case Background

Director Bahar Ata represented Mr. Vasa in this landmark case. The Court of Appeal considered several critical issues:

1. Immigration Powers Under EEA Regulations 2016: Whether the Immigration Officer had the authority to admit Mr. Vasa to the UK under the EEA Regulations 2016.
2. Scope of the Withdrawal Agreement: Whether Mr. Hasanaj and Mr. Vasa, who did not apply for an EEA residence card before the Brexit deadline on 31 December 2020, fell within the personal scope of the Withdrawal Agreement by virtue of the stamp in their passports, pursuant to Article 10(2), because their residence was facilitated by the host State in accordance with its national legislation before the end of the transition period in accordance with Article 3(2) of the Directive.
3. Grant of Leave to Enter: Whether there was a grant of leave to enter at the border, and if so, whether this placed Mr. Hasanaj and Mr. Vasa within the scope of the Withdrawal Agreement, pursuant to Article 10(2).
4. General Principles of UK Law: What the “general principles of UK law” invoked by Mr. Vasa were, their applicability, and the basis for their application.
5. Application of EU Law Principles: Whether the general principles of EU law applied to the stamps as facilitation of residence under Article 10(2) of the Withdrawal Agreement.

Court of Appeal Decision

After a thorough two-day trial, where the Court of Appeal heard submissions on behalf of Mr. Vasa and the other parties, as well as the AIRE Centre who intervened on behalf of Mr. Hasanaj, the Court of Appeal unanimously held that that the refusal of pre-settled status under the EUSS was a breach of the Withdrawal Agreement

Mr. Vasa arrived in the UK aged 16 as a dependent of his EU Citizen sponsor. At the border his passport was stamped by an Immigration Officer and he was allowed through border control. The Court of Appeal held that even if the Immigration Officer’s decision was erroneous, the action satisfied the requirements within the Withdrawal Agreement and therefore the entry would be considered as facilitation, allowing Mr Vasa to stay in the UK.

The court found that on an application under the EUSS, Secretary of State's refusal to accept the stamps placed in Mr Vasa and Mr Hasanaj's passports as evidence of their 'facilitation of residence' breached their rights under Articles 10(2) and 18 (1) (l) (iv) of the Withdrawal Agreement.

The Court rejected the argument that the Immigration Officer only admitted Mr. Vasa to enter the UK, but not the right to stay. It was held that decisions taken by a public official, such as stamping a passport, should be understood as permission to enter and live in the country. The Court emphasised that it did not matter whether the officer had mistaken the facts or made errors in law, but instead what the officer’s actions meant. Article 10(2) of the Withdrawal Agreement stipulates that extended family members can be granted status if they provide “a document issued by the relevant authority in the host state.” The Court confirmed that the stamp on Mr. Vasa's passport met this requirement.

Mr. Vasa was represented by Director Bahar Ata, instructing Irena Sabic KC and Eva M. Doerr of Garden Court Chambers. Their expertise and dedication were instrumental in achieving this favourable outcome.

About the Author

Bahar Ata, recommended for her expertise by The Legal 500 UK, has a niche practice in immigration and human rights related judicial review claimant matters, and also represents those detained under immigration powers, frequently bringing challenges against the SSHD for unlawful detention, claims of false imprisonment, and failures to provide accommodation. She has a varied practice representing clients in challenges against decisions involving trafficking, age assessments, and removals to third countries, with extensive experience representing clients at the High Court, Court of Appeal and at the Supreme Court.

Duncan Lewis’ Immigration team is at the forefront in the battle against unlawful detention for those held under immigration powers and Home Office practices and policies. The team has a broad practice representing clients in matters involving immigration; asylum and human rights and deportation matters, with a niche practice in immigration and civil liberties claimant Judicial Review matters. They have significant practice in challenging delays in Home Office decisions and unlawful immigration detention cases with high net claims for damages and challenging immigration removal cases.

For expert advice on any immigration or public law matter, call Bahar on 02070147398 or email us at bahara@duncanlewis.com