Following the departure of the United Kingdom from the European Union and in the context of the EU Settlement Scheme (“EUSS”), the Upper Tribunal in Batool & Ors (other family members: EU exit) [2022] UKUT 219 (IAC) (19 July 2022) considered the position of  “other family members” within the meaning of Article 3.2 of Directive 2004/38/EC.

The definition of “other family members” is found in Article 3(2) of the Directive.

Until 31 December 2020, the Directive was implemented in the United Kingdom by means of the Immigration (European Economic Area) Regulations 2016, i.e the 2016 Regulations. These Regulations described other family members as “extended family members”.

FP6(1) of the EUSS was the relevant provision in the case of the Appellants in Batool. It required them to be “family members of a relevant EEA citizen”, as defined in Annex 1 – a “family member of a relevant EEA citizen”  which must be a spouse, civil partner or durable partner of a relevant EEA citizen; or be the child or dependant parent of such a citizen, or of that citizen’s spouse or civil partner.

The Directive 2004/38/EC and the 2016 Regulations set out the  definitions of family members and other(or extended)  family members, in particular  that other family members did not enjoy automatic residence rights under EU law: they had to be the beneficiary of a positive exercise of discretion, recognised by the grant of residence documentation.

Articles 9, 10 ad 18 of the Withdrawal Agreement are an aid in understanding the circumstances in which other(extended) family members can seek to establish that they retain/preserv their rights of residence thus enabling them to rely upon the EU Settlement Scheme (“EUSS”).

Directive 2004/38/EC and the 2016 Regulations- difference between Family members and Other( or extended)  family members:

Family members:

Article 2(2) of the Directive provides that “family member” means:

“(a) the spouse;

(b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State;

(c) the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b);

(d) the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b)”.

Regulation 7 of the 2016 Regulations sets out the definition of family member.

‘close’ or “direct” family members can therefore include a spouse, civil partner, dependent child or dependent parent.

Other(or extended)  family members:

Article 3(2) of the Directive requires other family members to be persons who do not fall within the definition of “family member” in Article 2:

“1. This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.

2.Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons:

(a) any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen;

(b) the partner with whom the Union citizen has a durable relationship, duly attested”.

Regulation 8 of the 2016 Regulations provides the definition of extended family members.

“other “ or ‘extended’ family member can  for example be a brother, sister, aunt, uncle, cousin, nephew, niece or unmarried partner.

Other family members never enjoyed automatic residence rights under EU law. Not only did an individual have to satisfy the definition of other family member (extended family member under the 2016 Regulations); they also had to be the beneficiary of a positive exercise of discretion, recognised by the grant of residence documentation.

A host Member State is required by Article 3(2) to “undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people”.

Even if a person satisfies the requirements to be an other family member, Member States are under no obligation to accord that person a right of entry and residence. The obligation is merely to “facilitate” entry and residence.

An extended family member who had been issued with a residence card was, by reason of Regulation 7(3) of  the 2016 Regulations to be treated as a family member, for as long as they continued to satisfy the relevant condition in regulation 8 and provided the residence card remained in force.

Therefore unlike the family members whose rights flow directly from their position as such, other/extended family members have no such status, unless and until issued with the relevant permit, certificate or card.

The Withdrawal Agreement- Family members and Other( or extended)  family members:

The Withdrawal Agreement was signed on 19 October 2019. Article 126 contains a transition period. That period started on the day of entry and to force of the Agreement and ended on 23:00 hours GMT on 31 December 2020. During that period, EU law continued to apply in the United Kingdom.

Part 2 of the Withdrawal Agreement makes provision in relation to citizens’ rights. Both Articles 10 and 18 are contained within Part 2:

• from Article 18.1 and 18.4, the Withdrawal Agreement allows a host State to introduce “constitutive residence schemes”, which means that EU citizens and their direct family members can now be required to apply for residence rights, as opposed to enjoying them by virtue of their status and activities in the host Member State.
• Article 10.1(e) and (f) refer to “family members”. The expression “family members” is defined in Article 9. The definition does not encompass “other family members” within the meaning of Article 3(2) of the 2004 Directive. Such persons are brought within the application of Part 2 of the Withdrawal Agreement by Article 10.2 which states: “2. Persons falling under points (a) and (b) of Article 3(2) of Directive 2004/38/EC whose 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 that Directive shall retain their right of residence in the host State in accordance with this Part, provided that they continue to reside in the host State thereafter.” and  “3.Paragraph 2 shall also apply to persons falling under points (a) and (b) of Article 3(2) of Directive 2004/38/EC who have applied for facilitation of entry and residence before the end of the transition period, and whose residence is being facilitated by the host State in accordance with its national legislation thereafter.”
• Article 10.3, Article 10.2 applies to persons falling under points (a) and (b) of Article 3(2) of the Directive, provided they “have applied for facilitation of entry and residence before the end of the transition period, and whose residence is being facilitated by the host State in accordance with its national legislation thereafter”.
• The reference to “national legislation” reflects the fact that the arrangements for other family members are primarily regulated by domestic law.

The EUSS and Family members:

The EUSS was introduced on 30 March 2019. It enables EU, other EEA and Swiss citizens resident in the United Kingdom by the end of the transition period, and their family members, to obtain the necessary immigration status in order to reside lawfully in the United Kingdom, following the United Kingdom’s exit from the EU.

From the formal introduction of the EUSS on 30 March 2019 until 31 December 2020, EEA citizens and their family members could apply either under the 2016 Regulations or under the EUSS.

Having regard to  Article 10 of the Withdrawal Agreement, in order to fall within the scope of Part 2 (and, thus, Article 18) a person asserting to be an other family member must have “applied for facilitation of entry and residence before the end of the transition period”.

Appendix EU (FP) applies to persons residing outside the United Kingdom. It contains the conditions for the grant of either:

• an EUSS family permit to join a relevant EEA citizen or a qualifying British citizen in the United Kingdom or to accompany them to the United Kingdom; or
• an EUSS Travel Permit.

FP6(1) and (2) contain the eligibility requirements for entry clearance to be granted in the form of an EUSS family permit.

Background to the appeals:

The relevant EU national  was Persida Sultan, a Romanian national. She was married to Zahoor Sultan who was, the paternal uncle of all four of the appellants; accordingly  Persida Sultan was their aunt by marriage.

The first and second appellants were sister and brother, aged 17 and 10 at the date of the application. Their father was Chaudhary Ghulam Shabbir.

The third and fourth appellants were brothers, aged respectively 13 and 10 at the date of the application. Their father was Muhammed Amir Chaudhry.

On 3 February 2020 the appellants made their applications to the Respondent. The applications were made under the EUSS by reference to Appendix EU (Family Permit) to the Immigration Rules (“Appendix EU (FP)”).  At that time, the appellants were living in Pakistan with their 2 grandparents.

The grandparents(as dependant direct relatives in the ascending line) entered the United Kingdom on 17 July 2020 having been granted their EUSS family permits. They were granted limited leave to remain under Appendix EU on 23 September 2020 (grandfather) and 2 October 2020 (grandmother). After the grandparents travelled to the United Kingdom, the appellants were left  living with a woman from their village who was employed to look after them.

On 21 December 2020, Zahoor Sultan took the grandparents back to Pakistan.

Basis of refusal – Appellants were not family members for the purposes of the EUSS:

The Appellants’ applications were refused by the Respondent on 20 February 2020 on the basis that none of them met the eligibility requirements for an EUSS family permit. This was because, unlike the grandparents, the appellants were not family members of Persida Sultan for the purposes of the EUSS.

The Appellants appealed against that decision, pursuant to regulation 3 of the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 (“the 2020 Appeals Regulations”).

The Appellant’s arguments in the Upper Tribunal:

The Appellants’ appeal having been dismissed by the First Tier Tribunal, it was contended on their behalf in the Upper Tribunal that:

• As a matter of domestic law, the appellants did, in fact, fall within the scope of the expression “family member of a relevant EEA citizen” in Appendix EU (FP). Those immigration rules fall to be interpreted in the light of the Withdrawal Agreement.
• The appellants contended that other family members who have applied for a residence card or immigration document fall within the scope of the Withdrawal Agreement; specifically, Article 10(3). Pursuant to Article 10(5) they are accordingly entitled to be issued with a residence document.
• It was argued that Article 18 of the Withdrawal Agreement requires the United Kingdom to issue residence documents to family members and “other persons”, that expression being a shorthand for extended family members and those in a durable relationship.
• the concession made by the representative of the appellants before the First-tier Tribunal Judge was wrong. The appellants are family members of a relevant sponsor. This is because they are the nieces/nephews of the sponsor’s husband who have been and continue to be financially dependent on the sponsor/husband and who have been and continue to be a member of the sponsor/husband’s household in Pakistan.
• Given that the appellants applied for entry clearance before 31 December 2020 and their application was decided after that date, they continued to be beneficiaries under Article 10 of the Withdrawal Agreement. Furthermore, and in any event, the appellants had made a valid application which should have been treated by the respondent as an application under the 2016 Regulations.
• Regarding Article 8 of the ECHR, it was submitted that the First-tier Tribunal was required to “go on to decide the merits of the appeal, on invitation, in accordance with Article 7 and 24 of the Charter of the Fundamental Rights of the EU (“the EU Charter”) and then if necessary go on to consider Article 8 ECHR and section 55” of the Borders, Citizenship and Immigration Act 2009 (best interests of child).
• Alternatively, the appellants submitted that their “underlying case was a human rights claim”, the refusal of which was appealable: section 82(1) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”); Baihinga (r.22; human rights appeal: requirements) [2018] UKUT 00090 (IAC); [2018] Imm AR 930.
• nothing in the 2002 Act or the 2020 Appeal Regulations precluded them from making a human rights claim or having it decided by the First-tier Tribunal under section 82(1)(b) of the 2002 Act. In any event, Article 8 of the ECHR can be raised as a ground of appeal at first instance, as it was relevant to the substance of the decision. It was not a “new matter”. Even if it was such a matter, the presenting officer before the First-tier Tribunal Judge consented to Article 8 being considered.
• where an individual has made an application which also consists of “an underlying Article 8 ECHR claim” and this has been considered by the Respondent, then it is not a “new matter” and the First-tier Tribunal must therefore consider the merits of it, without requiring the consent of the Secretary of State.

The Upper Tribunal’s considerations and conclusions:

No breach of the Appellants’ rights under the Withdrawal Agreement- Respondent’s decisions were in accordance with Appendix EU (FP):

• Although the Appellants were permitted to withdraw the concession made on their behalf in the First-tier Tribunal, it was considered plain from the analysis of the relevant provisions that, notwithstanding the submissions now made on their behalf, the Appellants simply did not fall within the terms of Appendix EU (FP). Those immigration rules give effect to the Withdrawal Agreement and the appellants are not family members within the scope of Article 18.1 of the Withdrawal Agreement.
• Faced with this difficulty, it was noted the Appellants contended that the application they made on 3 February 2020 under Appendix EU (FP) was an application “for facilitation of entry and residence” for the purposes of Article 10.3 of the Withdrawal Agreement. The Upper Tribunal however considered that it was plain that Article 10.3 encompasses those who apply for entry or residence as other family members. The expression “facilitation” in the context of the preceding phrase “persons falling under points (a) and (b) of Article 3(2) of Directive 2004/38/EC” puts that beyond doubt. The appellants’ applications were not made on the basis that the Secretary of State should exercise discretion in their favour, as part of her obligations as identified by the CJEU in The application material made it crystal clear what the basis of the applications was. The appellants applied on the basis that they were family members.
• If the Appellants had applied under the 2016 Regulations as extended family members, then the effect of the transitional provisions would have been such as to require the Respondent to reach a decision, even after 31 December 2020, on whether their residence should be “facilitated”. In the event of a negative decision, a right of appeal would have lain to the First- tier Tribunal. As a result of a concession by the Secretary of State, now contained in immigration rules, a decision in the appellants’ favour would have led to the grant of leave, rather than the provision of EU (EEA) residence documentation (which is no longer available).
• The appellants did not apply for facilitation of entry and residence.
• The Upper Tribunal noted the Appellants’ argument in the alternative that, notwithstanding they applied under EUSS rather than under the 2016 Regulations, the Respondent ought to have treated their applications as being made under those Regulations: The Upper Tribunal however concluded that the guidance on http://www.gov.uk, however, showed that the Secretary of State had been at pains to provide potential applicants with the relevant information, in a simple form, including highlighting the crucial distinction between “close family members” and “extended family members”. That was a distinction which, as seen from the Directive and the case law, is enshrined in EU law. It is not a novel consequence of the United Kingdom’s leaving the EU. It was, accordingly, not possible to invoke sub-paragraphs (e) and (f) of Article 18 as authority for the proposition that the Respondent should have treated one kind of application as an entirely different kind of application.
• It could not be disproportionate for the Respondent and the Secretary of State, faced with the scale of EUSS applications, to devise and operate a system which draws attention to the two fundamentally different ways in which a family application should be made, and which then determines applications by reference to what an applicant is specifically asking to be given.
• The upshot was that the Appellants could not show their rights under the Withdrawal Agreement were breached by the Respondent’s decisions. The Appellants could not show that those decisions were not in accordance with Appendix EU (FP). Accordingly, the First-tier Tribunal could not allow their appeals by reference to Regulation 8 of the 2020 Appeal Regulations.

The Tribunal had no jurisdiction in an appeal governed by the 2020 Appeal Regulations to consider a “human rights” ground in this appeal:

The Appellants contended that the First-tier Tribunal Judge had a duty to consider their human rights and that this was not capable of being a “new matter” requiring the Secretary of State’s consent.

It was submitted that, where an appellant has made an application for residence pursuant to Article 18 of the Withdrawal Agreement, and the application contains a human rights claim which is refused, then the appellant may appeal on human rights grounds/grounds based on the EU Charter; and that this matter must be considered by the First-tier Tribunal.

It was contended that, if the Appellant did  not satisfy the EUSS, then the First-tier Tribunal in an appeal under the 2020 Appeal Regulations “must go on to decide the merits of the appeal, on invitation, in accordance with Articles 7 and 24 of the Charter of Fundamental Rights of the EU and then if necessary go on to consider Article 8 ECHR and section 55”. If the view is taken that the situation is not covered by European Union law, then the First-tier Tribunal  “must undertake that examination in the light of Article 8(1) of the ECHR”.

The Upper Tribunal concluded:

• The first task was to decide whether the First-tier Tribunal has jurisdiction in an appeal governed by the 2020 Appeal Regulations to consider a “human rights” ground. This involves an analysis of regulation 9 of the 2020 Appeal Regulations.
• Regulation 9(4) provides that the first-tier Tribunal has power to consider any matter which it thinks relevant to the substance of the decision. Here, however, the First-tier Tribunal can do so only with the consent of the Secretary of State, if the matter is a “new matter” as defined in regulation 9(6). This provides that the matter will be a “new matter” if it constitutes a ground of appeal of a kind listed in regulation 8 or section 84 and the Secretary of State has not previously considered the matter in the context of the decision appealed against under the Regulations or in the context of a section 120 statement from the appellant.
• The “jurisdiction” issue under regulation 9(4) in the context of Article 8 ECHR was addressed by the Upper Tribunal in Celik (EU exit, marriage, human rights) [2022] UKUT 220 (IAC) (19 July 2022). In essence, the Upper Tribunal found that the First-tier Tribunal has jurisdiction under regulation 9(4) to consider a human rights ground on an appeal against refusal of an application under the EUSS, provided that, if it is a “new matter”, the Secretary of State consents. Unless the Secretary of State has previously considered the Article 8 ECHR issue in the context of the decision appealed against or in a section 120 statement, the Secretary of State’s consent will be necessary in order for the First-tier Tribunal to consider the Article 8 issue. In order to succeed in an application for entry clearance under Appendix EU(FP), an applicant must meet the specific requirements of those rules. Since neither Appendix EU nor Appendix EU(FP) is intended to, and does not, give effect to the UK’s obligations under Article 8 ECHR, consideration of Article 8 forms no part of the decision-making process in relation to such an application. Regardless of the strength of any Article 8 claim, leave could not be granted under those provisions unless the requirements of the relevant rules were satisfied.
• The application materials in the appeals did not refer to human rights matters. They were, in no sense, a human rights claim within the meaning of section 113(1) of the 2002 Act. The decisions refusing the Appellants’ applications made no reference to human rights. The decisions could in no way be regarded as refusals of human rights claims within the meaning of section 82(1)(b) of that  2002 Act.
• the EU Charter had no bearing on the appeals. The EU Charter ceased to be part of the United Kingdom’s law on 31 December 2020: section 5(4) of the European Union (Withdrawal) Act 2018. The “saving” in section 5(5) merely concerns fundamental rights or principles which exist irrespective of the EU Charter. Since Article 7 of the EU Charter corresponds to Article 8 ECHR, the effect of section 5(5) is to put beyond doubt that Article 8 ECHR continues to apply after 31 December 2020.
• Article 24 of the EU Charter concerns the rights of the child. Article 24.1 was irrelevant in the present context. Article 24.2, which requires a child’s best interests to be a primary consideration in all actions relating to children, broadly corresponds with section 55 of the Borders, Citizenship and Immigration Act 2009, insofar as the Respondent is concerned. The Appellants however, failed to explain how the Respondent’s decisions under EUSS (FP) could conceivably have been different, merely because the appellants were children; still less how section 55 can be a material factor in an appeal brought under the 2020 Appeal Regulations.
• The submission that retained EU law is such as to require the Respondent and the First-tier Tribunal to determine the Article 8 rights of the appellants in the context of an appeal under the 2020 Appeal Regulations was noted as was the Appellants’ reliance upon Dereci and Others v Bundesministerium f ür Inneres [2012] 1 CMLR 45; [2012] Imm AR 230 (“Dereci”) at paragraph 72.
• The Upper Tribunal stated they were in no doubt that Dereci does not have the effect for which the appellants contend, even if it somehow remains part of United Kingdom law for the purposes with which they were concerned. If the position were otherwise, Schedule 2 (appeals to the First-tier Tribunal) to the 2016 Regulations would have been framed so as to include, as a ground of appeal, that the decision under those Regulations was a violation of Article 8 of the ECHR.
• The judgment of the Court of Appeal in Amirteymour v SSHD [2017] EWCA Civ 353; [2017] Imm AR 1368 made the Appellants’ case untenable. There, the Court held that human rights could not constitute a ground of appeal under the 2006 Regulations (the predecessors of the 2016 Regulations), unless it had featured in a response to a section 120 notice (the “new matter” provisions not having come into being at that time).
• The position, therefore, was that, unless there has been a section 120 response raising human rights, the First-tier Tribunal may entertain a submission that leave should be granted in order to avoid a breach of section 6 of the Human Rights Act 1998, only with the consent of the Secretary of State if this would involve consideration of a “new matter”.
• Since the Respondent’s decision making under Appendix EU (F P) is not concerned with human rights issues, the raising of a human rights claim will always be a “new matter” unless, for some reason, the Secretary of State has already considered it.
• For the reasons he gave, the First-tier Tribunal Judge was entitled to conclude, on the evidence, that the decisions refusing entry clearance were “entirely compatible with respect for their family and private life to which the appellants are entitled by Article 8 of the ECHR”.

Conclusion

Despite spirited efforts, the Appellants in Batool could not show the First-tier Tribunal’s decision in dismissing their appeal  involved the making of an error on a point of law. Their appeals were therefore dismissed.

As the applicants were nephews/nieces of the EU Sponsor( and her husband who was their paternal uncle),  their applications of 3 February 2020 should instead have been made at that time under the 2016 Regulations as other/extended family members rather than  under the EUSS.

Once the four applications for family permits were refused on 20 February 2020 their entire cases should have been reviewed so as to properly identity the applicable law as to eligibility and the relevant application method to utilise.  An appeal should not have been lodged in response to the refusal decisions- rather new family permit applications under the 2016 Regulations should have been made by 31 December 2020 to thereafter enable issue of appropriate residence documentation.

By the time the appeals were heard by the Upper Tribunal, two years after the refusal decisions, the odds were heavily stacked against the Appellants having regard to the provisions of law which had come into effect. Hence the Upper Tribunal’s conclusions in Batool as per its Headnote:

“(1) An extended (oka other) family member whose entry and residence was not being facilitated by the United Kingdom before 11pm GMT on 31 December 2020 and who had not applied for facilitation of entry and residence before that time, cannot rely upon the Withdrawal Agreement or the immigration rules in order to succeed in an appeal under the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020.

(2) Such a person has no right to have any application they have made for settlement as a family member treated as an application for facilitation and residence as an extended/other family member”.

Unfortunately, the principles and legal effect arising in Batool applies to other extended family members such as  brothers, sisters, uncles and aunts who failed to apply for a family permit  by 31 December 2020 under the 2016 Regulations.  As in Batool, they are unable now to rely upon the EUSS and neither can they rely upon the 2016 Regulations as these provisions have been revoked.

Celik (EU exit, marriage, human rights) [2022] UKUT 220 (IAC) (19 July 2022) is of similar effect in relation to an individual who had been in a cohabitating relationship with an EU national since February 2020  but had failed to marry by 31 December 2020 nor in the alternative, relevant to current similar circumstances, submitted an application as an extended family member(durable partner) by that date. Celik concluded as follows in dismissing that Appellant’s appeal:

“48.The appellant is not a family member to whom Part 2 of the Withdrawal Agreement applies. He was not a person who, in the words of Article 10.1(e)(i), resided in the United Kingdom in accordance with Union law before 11pm on 31 December 2020 and who continues to reside here afterwards. Nor does he fall within the scope of Article 10.1(e)(ii) or (iii).

52.There can be no doubt that the appellant’s residence in the United Kingdom was not facilitated by the respondent before 11pm on 31 December 2020. It was not enough that the appellant may, by that time, have been in a durable relationship with the person whom he married in 2021. Unlike spouses of EU citizens, extended family members enjoyed no right, as such, of residence under the EU free movement legislation. The rights of extended family members arose only upon their residence being facilitated by the respondent, as evidenced by the issue of a residence permit, registration certificate or a residence card: regulation 7(3) and regulation 7(5) of the 2016 Regulations.

53.If the appellant had applied for facilitation of entry and residence before the end of the transition period, Article 10.3 would have brought him within the scope of that Article, provided that such residence was being facilitated by the respondent “in accordance with … national legislation thereafter”. This is not, however, the position. For an application to have been validly made in this regard, it needed to have been made in accordance with regulation 21 of the 2016 Regulations. That required an application to be submitted online, using the relevant pages of http://www.gov.uk, by post or in person, using the relevant application form specified by the respondent; and accompanied by the applicable fee.

54.After 30 June 2021, a favourable decision of the respondent by reference to a pre-31 December 2020 application, results in a grant of leave under the EUSS, rather than a grant of residence documentation under the 2016 Regulations

55.As we have seen, the appellant made no such application.

56.The above analysis is destructive of the appellant’s ability to rely on the substance of Article 18.1. He has no right to call upon the respondent to provide him with a document evidencing his “new residence status” arising from the Withdrawal Agreement because that Agreement gives him no such status. He is not within the terms of Article 10 and so cannot show that he is a family member for the purposes of Article 18 or some other person residing in the United Kingdom in accordance with the conditions set out in Title II of Part 2.

57.The appellant’s attempt to rely on his 2021 marriage to an EU citizen is misconceived. EU rights of free movement ended at 11pm on 31 December 2020, so far as the United Kingdom and the present EU Member States are concerned. The Withdrawal Agreement identifies large and important classes of persons whose positions in the host State are protected, following the end of the transition period. The appellant, however, does not fall within any such class.

64.In the present case, there was no dispute as to the relevant facts. The appellant’s residence as a durable partner was not facilitated by the respondent before the end of the transitional period. He did not apply for such facilitation before the end of that period. As a result, and to reiterate, he could not bring himself within the substance of Article 18.1.”