What Now for EUSS Marriage Cases

The decision in Celik (EU exit; marriage; human rights) [2022] UKUT 00220 (IAC) is one which deals with a type of case that we deal with on a regular basis at Imperium Chambers. Although the case of Celik concerned a Turkish national, our “standard” usually involve Albanian or Algerian clients. The facts of Celik, and our cases, go like this:

The Applicant is in the UK unlawfully, and forms a relationship with an EU national sometime in 2019 or 2020. They may begin to live together during this period, and become engaged. As everyone knows, in 2020 the UK was in lockdown for most of the year. Many people were unable to get married because registry offices were closed. Even after they opened, they had huge backlogs. Many of our clients could not marry until after 31 December 2020.

This is crucial, because it is the end-date of the UK’s Post-EU exit transition period. If a person was married to an EU national before this date, they met the definition of a “spouse” under the EU Settlement Scheme. If they were not married before this date, they did not meet the definition of a “spouse” because they no longer had the benefit of the EUSS or the EEA Regulations 2016 in the same way.

We had many clients in this position who made applications under the EUSS before it closed in June 2021. We had to accept that, as a matter of law, they could not meet the definition of a spouse under the EUSS. However, we argued that:

1. They should be given the benefit of the EEA Regulations 2016 directly on the basis that the Regulations, which were less restrictive than the EUSS, superseded them and could be relied on directly;
2. In the alternative, we argued that the client should be considered a durable partner notwithstanding the fact that they had not been living together for two years at the date of the application. We argued that the Applicant’s residence in the UK did not need to be “facilitated” by the Home Office with the issuance of a residence card as a durable partner and that the Applicants could use other evidence to show that they were durable partners;
3. Finally, we argued that the decision to refuse the application was disproportionate, relying in particular on the whole host of concessions that the Home Office issued during the pandemic. We argued that the Appellant could rely on the principle of proportionality as it was an autonomous EU law concept, relying on R (Lumsdon and others) v Legal Services Board [2015] UKSC 41.

We have won lots of cases at the First-tier Tribunal one or more of these bases, but several cases were also dismissed. In almost all of these cases, the losing party would be successful in obtaining permission to appeal to the Upper Tribunal.

We are aware that a couple of these cases have been heard by the UT, but the case of Celik is the first reported case on the issue.

Unfortunately, it is very bad news. The headnote summarises the main points:

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.

A reading of Celik is very disappointing. The Upper Tribunal did not agree with our analysis of the law, or that of the Appellant’s in Celik. The UT held that the Appellant’s residence must be facilitated by the issuance of a residence permit in order to be considered a durable partner. The UT further held that the Appellant could not rely on the principle of proportionality because he did not come within the scope of Article 18.1(r) of the Withdrawal Agreement.

There does remain hope, however. We are unsure if the Appellant in Celik is appealing against the decision, but there are doubtless a large number similar cases pending in the Upper Tribunal – many of these are our clients. This is likely not the last case on this issue. Further, Celik did not deal with the arguments we have made on Appellants being able to rely on the EEA Regulations 2016.

By Kim Pullinger – Pupil Barrister