Celik (Eu Exit; Marriage; Human Rights)
| Jurisdiction | UK Non-devolved |
| Judge | Lane J,Hanson,McWilliam UTJJ |
| Judgment Date | 19 July 2022 |
| Neutral Citation | [2022] UKUT 220 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2022] UKUT 220 (IAC)
Lane J (President), Hanson and McWilliam UTJJ
UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
European Union law — family members — extended family members — durable partner — marriage — EU exit — EU Settlement Scheme — no application for facilitation of entry and residence — Articles 10 & 18 of the Withdrawal Agreement — proportionality — fairness — procedure and process — grounds of appeal — human rights — regulations 8 & 9 of the Immigration (Citizens' Rights Appeals) (EU Exit) Regulations 2020
The Claimant, a citizen of Turkey, arrived in the United Kingdom in 2007 and made an unsuccessful asylum application. He had remained in the United Kingdom unlawfully since April 2019. He began a relationship with a Romanian national in December 2019. The couple began cohabiting in February 2020. The Romanian national was granted limited leave to remain in the United Kingdom, pursuant to Appendix EU to the Immigration Rules HC 395 (as amended) in March 2020.
The post-EU exit transition period ended at 11pm on 31 December 2020. In October 2020, the Claimant made an application for leave to remain under the EU Settlement Scheme (‘EUSS’). The Secretary of State for the Home Department refused the application in March 2021 on the grounds that the Claimant had not been issued with a registration certificate, family permit or residence card under the Immigration (European Economic Area) Regulations 2016 (‘the 2016 Regulations’) as an extended family member (durable partner) of the Romanian national and therefore did not meet the requirements of the EUSS as a family member of a relevant EEA citizen. The Claimant did not appeal against that decision.
In October 2020, the Claimant contacted his local Register Office to secure a date to marry his partner. He said that because of Covid-19 restrictions and the lockdown rules he was not given a date to get married before 31 December 2020. The couple were married in April 2021. Thereafter, the Claimant made an application under the EUSS for leave to remain, on the basis that he was the spouse of a relevant EEA citizen. The Secretary of State refused the application in June 2021. She considered that the Claimant had not provided sufficient evidence to confirm that he was a family member of a relevant EEA citizen prior to 31 December 2020. She also concluded that he did not meet the requirements for settled status under the EUSS as he had not been issued with a family permit or residence card as the durable partner of an EEA national. Finally, she concluded that the Claimant did not meet the eligibility requirements for pre-settled status, as set out in paragraph EU14 of Appendix EU.
The First-tier Tribunal (‘FtT’) dismissed the Claimant's appeal, finding that he could not satisfy the requirements of the Immigration Rules. The FtT refused to consider the Claimant's argument under Article 8 ECHR as no human rights case had been made and it was not an available ground of appeal under section 8 of the Immigration (Citizens' Rights Appeals) (EU Exit) Regulations 2020 (‘the 2020 Regulations’) – The FtT also rejected the Claimant's submission that the Secretary of State's concessions in her Coronavirus guidance should extend to individuals who were prevented from marrying due to Covid restrictions. Permission to appeal to the Upper Tribunal was granted on the ground that the FtT had arguably erred in law in not addressing the Claimant's argument that Article 18(1)(r) of the EU Withdrawal Agreement required an examination of the proportionality of the Secretary of State's decision.
Held, dismissing the appeal:
(1) Article 10 of the Withdrawal Agreement set out who was within scope of Article 18. The Claimant did not fall within Article 10(2) as his residence in the United Kingdom had not been facilitated in accordance with Article 3(2) of Directive 2004/38/EC by the Secretary of State before 11pm on 31 December 2020. It was not enough that the Claimant might, 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 Secretary of State, as evidenced by the issue of a residence permit, registration certificate or a residence card under the 2016 Regulations. The Claimant also did not fall within Article 10(3) of the Withdrawal Agreement as he had not applied for facilitation of entry and residence before the end of the transition period. Accordingly, he could not show that he was a family member for the purposes of Article 18. A person in a durable relationship in the United Kingdom with an EU citizen had as such no substantive rights under the Withdrawal Agreement unless his entry and residence were being facilitated before 11pm on 31 December 2020 or he had applied for such facilitation before that time (paras 44 – 60).
(2) Where a person had no such substantive right, he could not 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 2020 Regulations. That included the situation where it was likely that the person would have been able to secure a date to marry the EU citizen before 11 pm on 31 December 2020, but for the Covid-19 pandemic. Proportionality was highly unlikely to play any material role where, as here, the issue was whether the claimant fell within the scope of Article 18 at all. The Claimant's attempt to invoke the principles of proportionality and fairness in order to compel the Secretary of State to grant him leave amounted to nothing less than the remarkable proposition that the FtT ought to have embarked on a judicial re-writing of the Withdrawal Agreement (paras 61 – 68).
(3) The powers of the FtT were set by regulations 8 and 9 of the 2020 Regulations. Regulation 8 stated that an appeal must be brought on one or both of two grounds: first, that the decision breached any right which the claimant had by virtue of Title II of Part 2 of the Withdrawal Agreement, which included Article 18, and, secondly, where the decision was not in accordance with the Immigration Rules. The Claimant had no substantive rights under Article 18 and could not satisfy the requirements of Appendix EU to the Rules as he had married his wife after 31 December 2020. Accordingly, the FtT was entitled to reject his appeal under regulation 8. Moreover, given the terms of regulation 8, the FtT had no jurisdiction to allow an appeal on the ground that the Secretary of State's decision was, as a general matter, ‘not in accordance with the law’: namely, on public law grounds. The EUSS guidance on which the Claimant relied concerned flexibility as to the timing and nature of evidence regarding the relevant requirements. It did not purport to vary those requirements. The Claimant had not shown any irrationality in the Secretary of State's decision to refuse to introduce a process, which would not have been mandated by the Withdrawal Agreement or the related Immigration Rules, whereby marriages which would probably have taken place before 31 December 2020 but for the Covid-19 pandemic, should in some way be treated as if they had taken place at an earlier date (paras 70 – 77).
(4) The Claimant raised a new ground of appeal which alleged discrimination. He submitted that the evidence to satisfy the requirement to be considered a durable partner was more stringent for the partner of an EEA sponsor than it was for the partner of a British citizen. He submitted that that was discriminatory against his wife, contrary to Article 12 of the Withdrawal Agreement. Article 12 prohibited discrimination on the grounds of nationality in respect of persons referred to in Article 10. As the Claimant was not a person within Article 10, Article 12 could not assist him. Moreover, this ground of appeal did not fall within regulation 8(2) of the 2020 Regulations which referred to a breach of the appellant's right, not a third party. Likewise, the Claimant's wife could not be invoked in respect of regulation 8(3) in that the decision was not contrary to the Immigration Rules, so far as the wife was concerned (paras 80 – 85).
(5) Regulation 9(4) of the 2020 Regulations conferred a power on the FtT 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. Decision-making under residence scheme immigration rules such as Appendix EU did not involve a consideration of the claimant's (or any other person's) rights under Article 8 ECHR. Thus, the raising of a human rights claim would always be a ‘new matter’, except where, for some reason, the Secretary of State had already considered it. In the instant case, the Secretary of State's consent was not sought by the Claimant, let alone given. Accordingly, the FtT was prevented by regulation 9(5) from considering any Article 8 argument (paras 87 – 97).
AS (Afghanistan) v Secretary of State for the Home Department; NV (Sri Lanka) v Secretary of State for the Home Department[2009] EWCA Civ 1076; [2011] 1 WLR 385; [2010] 2 All ER 21; [2010] Imm AR 284; [2010] INLR 111
Mahmud (S. 85 NIAA 2002 – ‘new matters’) [2017] UKUT 488 (IAC); [2018] Imm AR 264
Patel and Others v Secretary of State for the Home Department; Anwar v Secretary of State for the Home Department; Alam v Secretary of State for the Home Department[2011] UKSC 12[2013] 3 WLR 1517; [2014] 1 All ER 1157; [2014] Imm AR 456; [2014] INLR 205
SF and others (Guidance, post-2014 Act) Albania [2017] UKUT 120 (IAC); [2017] Imm AR 1003
YB (EEA Reg 17(4) — proper approach) Ivory Coast [2008] UKAIT 00062 (IAC)
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