According to the High Court, an EU national’s child can only remain in the UK after Brexit if they are under 21 or dependant on their parent. The court in R (on the application of Ali) v. Secretary of State for the Home Department [2023] EWHC 1615 (Admin) came to this decision, reaffirming that the UK’s EU Settlement Scheme faithfully captures the terms of the Withdrawal Agreement between the UK and the European Union.
The Details
Ms. Ali, the claimant, is a mother of an EU citizen and a citizen of Bangladesh. With an EEA family visa issued under the Immigration (European Economic Area) Regulations 2006, she entered the UK in 2014. This demonstrated her legal entitlement to reside in the EU as her mother’s “family member.” Before Brexit, if a child of a “qualified person” was under 21 or dependant on their parent, they were granted this privilege under the laws (later replaced in 2016) and the EU Directive on which they were based. Ms. Ali did not need to demonstrate reliance because she was 19 when she arrived.
A five-year EEA residency card was given to Ms. Ali in 2015. She stayed in the UK, but she and her mother lost contact. Since at least July 2016, when she reached age 20, she has not needed her for anything.
Ms. Ali submitted an application for limited leave to remain in 2019 under the EU Settlement Scheme, which is described in Appendix EU to the Immigration Rules and is also referred to as pre-settled status. Because she was above 21 and independent of her mother, her application was denied. She requested an administrative review, but it was denied. As a result, she filed a judicial review suit.
The Problems
After Brexit, the Withdrawal Agreement will guarantee the rights of EU citizens and their family members. In essence, the UK is bound to grant someone a right of residency if the Withdrawal Agreement specifies that they should. The Immigration Rules are illegal if they don’t include this clause. Ms. Ali conceded that the immigration rules did not apply to her, but she insisted that the rules did not correctly represent the withdrawal agreement.
According to the Withdrawal Agreement, those who were considered “family members” under Article 2(2) of the Directive should maintain their right to reside in the UK after Brexit. The EU national’s “direct descendants who are under the age of 21 or are dependents” are included in the definition of “family members.” By the time of her EUSS application, Ms. Ali was over 21 and independent, thus she did not fit this definition. She claimed that this wasn’t important and that it was sufficient that she had already been acknowledged as a “family member” while receiving the residence card.
Ms. Ali cited the ruling of the Court of Justice of the European Union in Reyes v. Migrationsverket [2014] EUECJ C-423/12, which was covered here. The court addressed the definition dependency under the Directive in the case. One of its findings was that someone could be reliant even if they planned to work in the future.
According to Ms. Ali, this means that a direct descendant who was regarded as a “family member” in the past would continue have a claim to residency even if they stopped being dependent and started supporting themselves. As a result, they were covered by the Withdrawal Agreement.
Ms. Ali countered by saying that even if she were mistaken about Reyes’ impact, the Withdrawal Agreement still gave her a right to reside there. She cited Article 17(2), which reads as follows:
“The rights provided for in this Title for the family members who are dependants of Union citizens or United Kingdom nationals before the end of the transition period, shall be maintained even after they cease to be dependants.”
This, according to Ms. Ali, indicated that regardless of when the dependency terminated, a child of an EU national had the right to reside in the United States when the transition period finished (11 p.m. on December 31, 2020).
The Verdict
Ms. Ali’s claims were rejected by Mr. Justice Lane, who heard the case in the High Court. He emphasised that the European Court is limited to responding to inquiries that have been referred to it by national courts. Since Ms. Ali’s current concern was not addressed in Reyes, it was impossible to infer from its ruling the larger principle she argued for. He highlighted Directive Article 14(2), which states that family members “shall have the right of residence provided for in Articles 7, 12 and 13 as long as they meet the conditions set forth therein.” He said that this implies they must continue to fit the criteria for “family member,” which calls for being under 21 or dependant.
In response to the Article 17(2) contention, Lane J acknowledged its “superficial attraction” but came to the conclusion that, when read in context, the phrase “before the end of the transition period” referred to the time frame immediately before 31 December 2020. Being dependant at one point in the past was insufficient. The separate argument that it was unreasonable for the Rules to treat Ms. Ali differently from a family member who lacked a residence card prior to applying to the Settlement Scheme was also rejected by him.
Ms. Ali’s judicial review appeal was rejected since it was determined that she wasn’t reliant on her mother when she applied to the EU Settlement Scheme.
Comment
Before Brexit, it was common practise to require applicants who had previously been given residence cards based on dependency to demonstrate that it had maintained in order to be issued permanent residency certificates. Thus, it is not surprising that Lane J’s decision, which supports this view of EU law, was rendered. Ms. Ali’s case demonstrates that non-EU citizens in the UK are unlikely to profit from the Withdrawal Agreement if they didn’t have a right of residence before to Brexit, similar to Celik (EU leave, marriage, human rights) [2022] UKUT 220 (IAC).
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Written by:
Ghulam Mustafa
Director, Barrister