The King (on the application of) Fatima Ali v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lane |
| Judgment Date | 30 June 2023 |
| Neutral Citation | [2023] EWHC 1615 (Admin) |
| Docket Number | Case No: CO/1747/2021 |
| Court | King's Bench Division (Administrative Court) |
[2023] EWHC 1615 (Admin)
Mr Justice Lane
Case No: CO/1747/2021
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr C Buttler KC, Ms C Bayati (instructed by Polpitiya & Co) for the Claimant
Mr D Blundell KC, Ms J Smyth (instructed by the Government Legal Department) for the Defendant
Hearing dates: 25 April 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 30 June 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives (see eg https://www.bailii.org/ew/cases/EWCA/Civ/2022/1169.html).
A. INTRODUCTION
This claim for judicial review concerns the rights of children of European Union citizens who are not themselves citizens of the European Union or British citizens. Under EU law, such a child who is either under the age of 21 or over that age but financially dependent on the EU citizen is a “family member” within the meaning of article 2 of Directive 2004/38/EC (“the Directive”). By virtue of article 7 of the Directive, such a child has the right of residence on the territory of another Member State for a period of longer than three months if they are accompanying or joining the EU citizen concerned; provided that that citizen satisfies the conditions referred to in article 7(1)(a) to (c); for example, being a worker or self-employed person.
Following its decision to leave the EU, the United Kingdom entered into an agreement “on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community” (“the Withdrawal Agreement”). The transition period, during which EU law continued to apply in the United Kingdom, came to an end at 11:00 pm GMT on 31 December 2020. Thereafter, the EU law of free movement continues to apply in the United Kingdom only if and to the extent that it is specifically applied by the Withdrawal Agreement. That agreement is given effect in the law of the United Kingdom by section 7A of the European Union (Withdrawal) Act 2018.
The basic question posed by the judicial review is whether the defendant's immigration rules correctly reflect the Withdrawal Agreement by providing that, in order to qualify for continuing residence under the Withdrawal Agreement, the third country national child of an EU citizen in the United Kingdom must be either under the age of 21 or remain financially dependent on the EU citizen at the end of the transition period.
B. THE CLAIMANT AND HER CASE
The claimant is a citizen of Bangladesh, born on 25 September 1995. The claimant entered the United Kingdom in December 2014, aged 19. She did so as the family member of her EEA national mother (as a child under 21). She entered in possession of an EEA family permit issued pursuant to the Directive and the relevant domestic implementing legislation: the Immigration (European Economic Area) Regulations 2006.
It is common ground that the claimant became estranged from her mother and other biological family members, as a result of which she has lived independently from them since at least July 2016, when the claimant was aged 20. It was then that the claimant married her husband, a national of Bangladesh. The claimant does not assert that, after this point, she was financially dependent upon her mother.
The residence card, issued in connection with the claimant's entry into the United Kingdom, was valid until 21 September 2020. On 9 October 2019, the claimant made an application to the defendant for pre-settled status/limited leave to remain under the EU Settlement Scheme (“EUSS”) as the family member of her mother. On 24 September 2020, that application was refused. The defendant's reason was that the claimant was not, at the date of decision, dependent upon her mother. The defendant stated that this was a requirement since the claimant was now over 21. The claimant's application for administrative review of that decision was unsuccessful.
The grounds of claim contend that the defendant's decision is contrary to the Withdrawal Agreement. They further contend that the decision was, in effect, irrational in that a person granted limited leave to remain as a child under 21 who then reaches the age of 21 does not require to prove dependency on the EU citizen; whereas someone such as the claimant, who was previously granted a residence card, and who then reaches 21, is required to demonstrate such dependency.
C. THE DIRECTIVE
Article 2 of the Directive defines “family member” as, inter alia, “the direct descendants” of the Union citizen “who are under the age of 21 or are dependants”. The right of such a family member to accompany or join the EU citizen in the host Member State is governed exclusively by EU law. Where the criteria under the Directive are satisfied, the right is automatic. This stands in contrast to the position of “other family members”, as to whom article 3(2) provides that the host Member State must “facilitate entry and residence” in accordance with its national legislation.
Article 12 provides for the retention of the right of residence by family members in the event of the death or departure of the Union citizen, whose family member they are. The death of the Union citizen shall not entail the loss of the right of residence of the family member, where they have been residing as such for at least one year before that death. Before acquiring the right of permanent residence, the family member must meet one or more of the conditions laid down in article 7(1)(a) to (d).
Article 13 makes provision for the retention of the right of residence by family members in the event of divorce, annulment of marriage or termination of registered partnership. Amongst the ways in which the right of residence may be retained is where the marriage etc has lasted at least three years, including one year in the host Member State.
Article 14 (retention of the right of residence) provides, at paragraph (2), that Union citizens and their family members shall have the right of residence provided for in articles 7, 12 and 13 “as long as they meet the conditions set out therein”.
Article 16 makes provision for the right of permanent residence in respect of EU citizens and their family members. Those who have resided legally for a continuous period of five years in the host Member State have the right of permanent residence there, without thereafter having to be a worker, self-employed etc. Article 16(2) provides that this also applies to family members who are not nationals of a Member State “and have legally resided with the Union citizen in the host Member State for a continuous period of five years”.
Article 23 (related rights) provides as follows:
“Irrespective of nationality, the family members of a Union citizen who have the right of residence or the right of permanent residence in a Member State shall be entitled to take up employment or self-employment there.”
D. THE WITHDRAWAL AGREEMENT
Article 1 provides that the Withdrawal Agreement sets out the arrangements for the withdrawal of the United Kingdom from the European Union and from Euratom. Article 2 contains definitions, including that of “Union law”.
Article 4(4) states that the provisions of the Withdrawal Agreement referring to Union law or to concepts or provisions thereof shall in their implementation and application be interpreted in conformity with the relevant case law of the Court of Justice of the European Union (“the CJEU”) handed down before the end of the transition period. Thereafter, article 4(5) provides that the United Kingdom's judicial and administrative authorities shall have due regard to relevant case law of the CJEU handed down after the end of that period.
Article 6(1) reads as follows:-
“1. With the exception of Parts Four and Five, unless otherwise provided in this Agreement, all references in this Agreement to Union law shall be understood as references to Union law, including as amended or replaced, as applicable on the last day of the transition period.”
Part Two of the Withdrawal Agreement concern citizens' rights. Article 9 contains relevant definitions.
Article 13 provides as follows:-
“Article 13
Residence rights
Union citizens and United Kingdom nationals shall have the right to reside in the host State under the limitations and conditions as set out in Articles 21, 45 or 49 TFEU and in Article 6(1), points (a), (b) or (c) of Article 7(1), Article 7(3), Article 14, Article 16(1) or Article 17(1) of Directive 2004/38/EC.
Family Members who are either Union citizens or United Kingdom nationals shall have the right to reside in the host State as set out in Article 21 TFEU and in Article 6(1), point (d) of Article 7(1), Article 12( 1) or (3), Article 13(1), Article 14, Article 16(1) or Article 17(3) and (4) of Directive 2004/38/EC, subject to the limitations and conditions set out in those provisions.
Family Members who are neither Union citizens nor United Kingdom nationals shall have the right to reside in the host State under Article 21 TFEU and as set out in Article 6(2), Article 7(2), Article 12( 2) or (3), Article 13(2), Article 14, Article 16(2), Article 17( 3) or (4) or Article 18 of Directive 2004/38/EC, subject to the limitations and conditions set out in those provisions.
The host State may not impose any limitations or conditions for obtaining, retaining or losing residence rights on the persons referred to in paragraphs 1, 2 and 3, other than those provided for in this Title. There shall be no discretion in applying the limitations and conditions provided for in this Title, other than in...
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Upper Tribunal (Immigration and asylum chamber), 2023-07-22, UI-2022-002773
...in the United Kingdom. Secondly, the case of R (on the application of Fatima Ali) v Secretary of State for the Home Department [2023] EWHC 1615 (Admin) clarified the requirement of lawful residence as at the end of the transition period (i.e. on 31 December 2020) rather than at any time pri......