“The Withdrawal Agreement lies at the heart of this case. It is therefore necessary to examine, in some detail, how the Withdrawal Agreement applies to a person, such as the appellant, who was (or may have been) in a durable relationship, prior to 31 December 2020, with an EU citizen but who did not marry the EU citizen until after that time”, paragraph 44 of Celik (EU exit, marriage, human rights) [2022] UKUT 220 (IAC) (19 July 2022)
The case of Batool & Ors (other family members: EU exit) [2022] UKUT 219 (IAC) (19 July 2022), amongst other matters, effectively provides for the definition of family members and other (or extended) family members within the meaning of Article 2.2 and 3.2 of Directive 2004/38/EC when considering an EUSS appeal. In particular, the fact that extended family members did not enjoy automatic residence rights under EU law and had to be the beneficiary of a positive exercise of discretion, recognised by the grant of residence documentation, is relevant to ascertaining the point from which they can establish they retain/preserve their rights of residence thus enabling them to rely upon the EU Settlement Scheme (“EUSS”).
Background
The Appellant, a citizen of Turkey, arrived in the United Kingdom in September 2007 and claimed asylum. The claim was refused, as was a subsequent appeal. His claim having been refused and appeal rights exhausted, since 8 April 2019 the appellant remained unlawfully in the United Kingdom.
The Appellant began a relationship with a Romanian national in December 2019. The couple began cohabiting sometime in or after February 2020. On 10 March 2020 the Romanian national was granted limited leave to remain in the United Kingdom, pursuant to Appendix EU of the Immigration Rules.
Having made an application on 19 October 2020, for leave to remain under the EUSS the Respondent refused the application on 2 March 2021 on the basis that the appellant had not been issued with a registration certificate, family permit or residence card under the Immigration (European Economic Area (Regulations) 2016 as an extended family member (durable partner) of the Romanian national; he therefore did not meet the requirements of the EUSS as a family member of a relevant EEA citizen. The appellant did not appeal against that decision.
On 20 October 2020, the Appellant made contact with Bracknell Forest Council’s Register Office, in order to secure a date for his wedding. On that date, the Appellant gave notice to the Register Office and paid them a fee of £50. The Appellant stated that it was due to Covid-19 restrictions and the lockdown rules which were in place at the time that he and his fiancée, were not given the date to get married before 31 December 2020. They only managed to get a date to get married on 9 April 2021.
Following his marriage, the Appellant made an application under the EU Settlement Scheme for leave to remain, on the basis that he was the spouse of a relevant EEA citizen. On 23 June 2021, the Respondent refused the Appellant’s application.
Application refused as a spouse and as a durable partner under the EU Settlement Scheme:
The Respondent within the refusal decision considered that the Appellant had, “not provided sufficient evidence to confirm that you were a family member of a relevant EEA citizen prior to the specified date, as defined in Annex 1 of Appendix EU (i.e. 2300 GMT on 31 December 2020). Your marriage certificate shows your marriage took place on 9 April 2021”.
The Respondent then considered whether the appellant met the eligibility requirements for settled status under the EU Settlement Scheme as a durable partner. Home Office records did not show that the Appellant had been issued with a family permit or residence card as the durable partner of the EEA national. Accordingly, the Respondent concluded that the Appellant did not meet the requirements for settled status under the EU Settlement Scheme.
On appeal, the Appellant’s appeal was dismissed by the First Tier Tribunal. His application for permission to appeal was granted to be heard in the Upper Tribunal.
Arguments raised by the Appellant
Amongst other arguments it was contended on the Appellant’s behalf:
- the grounds of appeal permitted by regulation 8 of the Immigration( Citizens’ Rights Appeals) (EU Exit) Regulations 2020, the 2020 Regulations, entitled the Appellant to succeed, if he could demonstrate that the decision in his case was not a proportionate one.
- the appellant was undoubtedly an applicant within the meaning of Article 18 of the Withdrawal Agreement and, accordingly, the First-tier Tribunal Judge was required to consider proportionality.
- The sole effective reason why the appellant was refused limited leave to remain under paragraph EU14 of the Immigration Rules was that he married his wife after 11pm on 31 December 2020. By reason of Article 18(1)(r), the First-tier Tribunal Judge should have had regard to what was said to be the “undisputed facts and circumstances”, that the appellant’s marriage could not take place before the specified date, due to the Covid-19 pandemic and the resulting public emergency, all of which was beyond his control.
- the principle of proportionality facilitates a deeper exploration of the fairness of the decision. On the facts, the appellant had a strong legal and moral case and it would be “staggeringly unjust” if he could not benefit from the EUSS, in all the circumstances.
- If, contrary to the submissions, the appellant was unable to succeed as the spouse of an EU citizen, he should qualify as a durable partner. The suggestion that, in order to be durable, the relationship must have existed for at least two years is merely a “rule of thumb”: YB (EEA Reg 17(4), proper approach) Ivory Coast [2008] UKAIT 00062 (IAC). Furthermore, the definition of “durable partner” in Appendix EU expressly allows for a shorter period of residence if there is “other significant evidence of the durable relationship”.
- there were such other significant evidence in the present case. The Appellant and his wife had provided considerable evidence of the durability of the relationship through witness statements, a tenancy Agreement, council tax bills, utility bills, photographs and letters of support. The fact that the couple continued to cohabit, as evidenced in utility bills etc from April to June 2022 is, significant evidence that the relationship was at all times durable.
- The First-tier Tribunal Judge was wrong to hold, that the grounds of appeal in regulation 8 do not allow for an appeal to be advanced on human rights grounds. The Appellant has a family life with his wife and her daughter (now his stepdaughter); and that the undoubted interference with that life caused by the Respondent’s decision is a breach of Article 8 of the ECHR and Article 7 of the Charter of Fundamental Rights.
Applicable provisions- the Withdrawal Agreement:
The Upper Tribunal generally had this to say regarding the Withdrawal Agreement:
- Article 126 provides for a transition period, which started on the day of the entry into force of the Withdrawal Agreement and ended at 23:00 hours GMT on 31 December 2020. During that period, EU law continued to apply in the United Kingdom. Thereafter, Article 4 provides for individuals to rely directly on the provisions of the Withdrawal Agreement, which meet the conditions for direct effect under EU law. In accordance with Article 4, the Withdrawal Agreement is given direct effect in the United Kingdom by section 7A of the European Union (Withdrawal) Act 2018.
- Part 2 of the Withdrawal Agreement makes provision in relation to citizens’ rights. Article 10 sets out who is within scope of Part 2. That Part includes Article 18, upon which the appellant sought to rely.
- “Family members “are defined in Article 9. The opening words of the definition of “family members” also require the person concerned to “fall within the personal scope provided for in Article 10” of the Withdrawal Agreement.
- Article 10.2 and 10.3. provides: “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 3(2) of Directive 2004/38/EC requires Member States to “facilitate entry and residence” for “any other family members” who are dependents or members of the household of the Union citizen; or where serious health grounds strictly require the personal care of the family member by the Union citizen. A person is also within Article 3.2 if they are a “partner with whom the Union citizen has a durable relationship, duly attested”. For such persons, the host Member State is required to “undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people”.
As regards principles of EU law, the Upper Tribunal stated:
“69. We have earlier set out paragraph 73 of Mr Hawkin’s skeleton argument. At risk of repetition, we agree with Ms Smyth that the appellant cannot have regard to EU principles of law, the Citizens Rights Directive or the Charter of Fundamental Rights, except to the extent that this is required by the Withdrawal Agreement. In the present case, that Agreement does not require or permit a court or tribunal to do so. Directive 2004/38/EC no longer applies in the United Kingdom, as a general matter. The Charter of Fundamental Rights no longer applies: section 5(4) of the EU (Withdrawal Act 2018). Although part of “Union law” for the purposes of the Withdrawal Agreement, the Charter does not apply generally”.
Appellant not within scope of the Withdrawal Agreement -not a family member nor durable partner
The Upper Tribunal provided the following reasons why they considered the Appellant was not caught by the provisions of the Withdrawal Agreement:
- The Appellant was 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).
- The only way the Appellant could bring himself within the scope of Part 2 and, thus, Article 18, was if he fell within Article 10.2( set out above).
- 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.
- 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 was 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.
- 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. The Appellant made no such application.
- The above analysis was destructive of the Appellant’s ability to rely on the substance of Article 18.1. He had 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 gave him no such status. He was not within the terms of Article 10 and so could not show that he was 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.
- The Appellant’s attempt to rely on his 2021 marriage to an EU citizen was 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, did not fall within any such class.
- It was not possible to invoke principles of EU law in interpreting the Withdrawal Agreement, save insofar as that Agreement specifically provides. This is apparent from Article 4(3). It is only the provisions of the Withdrawal Agreement which specifically refer to EU law or to concepts or provisions thereof which are to be interpreted in accordance with the methods and general principles of EU law. EU law does not apply more generally.
- The clarity provided by Article 10 of the Withdrawal Agreement reflects the intention of the United Kingdom and the EU that the Agreement should ensure an orderly withdrawal of the UK; protect only those United Kingdom and EU citizens who were exercising free movement rights before a specific date (see the 6th recital); and provide legal certainty to citizens and economic operators as well as to judicial and administrative authorities (see the 7th recital).
- Sub-paragraphs (a) to (d) of Article 18 make specific provision for late submission of an application for a new residence status. One looks in vain in Article 18 and elsewhere in the Withdrawal Agreement for anything to the effect that a person who did not meet the relevant requirements as at 11pm on 31 December 2020 can, nevertheless, be treated as meeting those requirements by reference to events occurring after that time. If that had been the intention of the United Kingdom and the EU, the Withdrawal Agreement would have so specified. Article 31 of the Vienna Convention on the Law of Treaties (1969) requires a treaty to be “interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”. It would plainly be contrary to the Vienna Convention to interpret the Withdrawal Agreement in the way for which the appellant contends.
Principle of proportionality( or fairness) inapplicable in order to compel the Respondent to grant the Appellant leave:
The Upper Tribunal noted that the Appellant placed great reliance on Article 18.1(r) of the Withdrawal Agreement which gives a right for “the applicant” for new residence status to have access to judicial redress procedures, involving an examination of the legality of the decision as well as of the facts and circumstances on which the decision is based. These redress procedures must ensure that the decision “is not disproportionate”.
The Upper Tribunal concluded:
- The nature of the duty to ensure that the decision is not disproportionate must, however, depend upon the particular facts and circumstances of the applicant. The requirement of proportionality may assume greater significance where, for example, the applicant contends that they were unsuccessful because the host State imposed unnecessary administrative burdens on them. By contrast, proportionality is highly unlikely to play any material role where, as here, the issue is whether the applicant falls within the scope of Article 18 at all.
- 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
- Against this background, the Appellant’s attempt to invoke the principle of proportionality in order to compel the Respondent to grant him leave amounted to nothing less than the remarkable proposition that the First-tier Tribunal Judge ought to have embarked on a judicial re-writing of the Withdrawal Agreement. The First-tier Tribunal Judge quite rightly refused to do so.
- Closely linked to the Appellant’s submissions on proportionality was his attempt to invoke the principle of fairness. The Appellant’s case is that he would have secured a date for his wedding to take place before 31 December 2020, but for the Covid-19 pandemic. Although there was nothing in the exchanges with the Register Office that confirms this assertion, the Upper Tribunal took the appellant’s case at its highest and assumed that this was so.
- The Upper Tribunal concluded that even on that assumption, however, the principle of fairness could not assist the appellant. As is the case with proportionality, it did not give a judge power to disregard the Withdrawal Agreement.
Whether the First-tier Tribunal has jurisdiction, in an EUSS appeal, to consider human rights:
The First-tier Tribunal Judge stated that she “refused to consider an Article 8 argument, no human rights case having been made and it not been an available ground of appeal under the 2020 Regulations”.
It was submitted that the Appellant clearly had a family life with his wife and stepdaughter and that the undoubted interference with that life, occasioned by the Respondent’s decision, is a disproportionate interference with Article 8 of the ECHR.
The Appellant sought to rely on regulation 9(4) of the Immigration( Citizens’ Rights Appeals) (EU Exit) Regulations 2020, the 2020 Regulations. This provides that the relevant authority may also consider any matter which it thinks relevant to the substance of the decision appealed against, including a matter arising after the date of the decision. The Upper Tribunal considered that the word “also” signifies that regulation 9(4) is an addition to the requirement on the relevant authority to consider a matter raised in response to a notice issued by the respondent under section 120 of the Nationality, Immigration and Asylum Act 2020. A matter raised in such a statement must be considered if it constitutes a specified ground of appeal; that is to say a ground under regulation 8 or a ground mentioned in section 84 of the 2002 Act (international protection/revocation of protection status/human rights).
Regulation 9(5), however, provides that the power conferred by regulation 9(4) is limited, in that the relevant authority “must not consider a new matter without the consent of the Secretary of State”. Regulation 9(6) provides that a matter is a “new matter” if, inter alia, “it constitutes a ground of appeal of a kind listed in regulation 8 or section 84 of the 2002 Act”.
The Upper Tribunal considered that the first question was to decide whether the First-tier Tribunal has jurisdiction, in an appeal of this kind, to consider human rights. The question arose because decision-making under residence scheme immigration rules (Appendix EU) does not involve a consideration of the applicant’s (or any other person’s) rights under Article 8 of the ECHR.
The Upper Tribunal concluded as follows:
“93. In order for regulation 9(4) to come into play, two requirements must be satisfied. There must be a “matter”, in the sense of being the factual substance of a claim: Mahmud (s.85 NIAA 2002 – ‘new matters’) [2017] UKUT 00488 (IAC) at paragraph 29. Second, the matter must be “relevant to the substance of the decision appealed against”. The interpretation of the words “relevant to the substance of the decision”, as found in section 85(4) of the 2002 Act, was considered by the Supreme Court in Patel & Others v SSHD [2013] UKSC 72; [2014] Imm AR 456. Giving the lead judgment, Lord Carnwath (with whom Lord Kerr, Lord Reed and Lord Hughes agreed) upheld the “wide” construction of the words, which had been taken by the majority of the Court of Appeal in AS (Afghanistan) v SSHD [2011] EWCA Civ 833; [2011] Imm AR 832. Under this approach, the substance of the decision appealed against is no more than the decision to refuse to grant or vary leave to enter or remain (or entry clearance) as opposed to, for example, a “decision to refuse to vary leave to remain under rule x” (Sullivan LJ at paragraph 113).
94.Transposed to regulation 9 of the 2020 Regulations, the “decision appealed against”, is, in the present case, the decision to refuse to grant the appellant leave to enter or remain generally, as opposed to a decision to refuse him leave to enter or remain under the EUSS rules specifically.
95.This means that regulation 9(4) confers a power on the First-tier Tribunal to consider a human rights ground, subject to the prohibition imposed by regulation 9(5) upon the Tribunal considering a new matter without the consent of the respondent.
96.Given what we have said about the nature of the respondent’s decision-making under Appendix EU, the raising of a human rights claim will always be a” new matter”, except where, for some reason, the respondent has already considered it.
97.In the present case, the respondent’s consent was not sought by the appellant, let alone given. As a result, even though the First-tier Tribunal Judge might have been mistaken as to the ambit of regulation 9(4), any error in this regard is immaterial. Since the respondent had not consented, the First-tier Tribunal Judge was prevented by regulation 9(5) from considering any Article 8 argument.
98.As the respondent submits, if the appellant now wishes to claim that he should be permitted to remain in the United Kingdom in reliance on Article 8, he can and should make the relevant application, accompanied by the appropriate fee”.
Conclusion
Only some few paragraphs in Celik are dedicated to considerations of whether the First-tier Tribunal has jurisdiction, in an EUSS appeal, to consider human rights.
The rest of the Upper Tribunal’s judgement relates to reasoning and conclusions as regards how the Appellant missed an opportunity to either marry his EU partner( who was based in the United Kingdom) by 31 December 2020 or submit an application as an extended family member( durable partner) by the said date. Having done neither by 31 December 2020 he was not caught by the provisions of the Withdrawal Agreement and his EUSS application of 2021 accordingly failed.
Accordingly as per the summary Headnote in Celik :
“(1) A person (P) in a durable relationship in the United Kingdom with an EU citizen has as such no substantive rights under the EU Withdrawal Agreement, unless P’s entry and residence were being facilitated before 11pm GMT on 31 December 2020 or P had applied for such facilitation before that time.
(2) Where P has no such substantive right, P cannot invoke the concept of proportionality in Article 18.1(r) of the Withdrawal Agreement or the principle of fairness, in order to succeed in an appeal under the Immigration (Citizens’ Rights) (EU Exit) Regulations 2020 (“the 2020 Regulations”). That includes the situation where it is likely that P would have been able to secure a date to marry the EU citizen before the time mentioned in paragraph (1) above, but for the Covid-19 pandemic.
(3) Regulation 9(4) of the 2020 Regulations confers a power on the First-tier Tribunal to consider a human rights ground of appeal, subject to the prohibition imposed by regulation 9(5) upon the Tribunal considering a new matter without the consent of the Secretary of State”.
The result in Celik unfortunately leaves quite a few affected individuals having to resort to Article 8 applications either by reference to Appendix FM or Article 8 ground outside the Rules having regard to Exceptional Circumstances – along with the need in most cases to make provision for exorbitant Home Office application fees.