Is it discriminatory to prevent non-EEA nationals with pre-settled status from being joined in the UK by their spouse?

There is a strong argument that the answer to this question is yes. The Home Office recently conceded a judicial review brought on this basis. However, to date, the argument has not been tested in court.

The eligibility requirements for entry clearance as a spouse are in Appendix FM of the immigration rules. These rules require a person to demonstrate that their partner is a British citizen, present and settled in the UK, in the UK with protection status, or “in the UK with limited leave under Appendix EU, in accordance with paragraph GEN 1.3.(d)” (para E-ECP.2.1(d)).

Paragraph GEN.1.3(d) provides as follows:

…references to a person being “in the UK with limited leave under Appendix EU” mean an EEA national in the UK who holds valid limited leave to enter or remain granted under [certain specific provisions of Appendix EU]. 

This allows an EEA national with pre-settled status to be joined in the UK by their spouse. A non-EEA national does not enjoy this same benefit. This may be justifiable in some circumstances.

For instance, if the non-EEA national has pre-settled status as the spouse of an EEA citizen then, obviously, they should not be permitted to be joined by a second spouse. However, the differential treatment becomes much more difficult to justify if the relationship with the EEA citizen breaks down and the non-EEA national remains in the UK, with pre-settled status, on the basis of a retained right of residence.

Similarly, it is understandable that a non-EEA national who has pre-settled status as the child of an EEA citizen cannot be joined by a spouse whilst they are still under the age of 18. However, the differential treatment becomes much more difficult to justify once they are an adult given that there is no requirement for ongoing dependency.

Justification for differential treatment

The justification for this differential treatment appears to be twofold:

1. Under EU free movement law, when it applied in the UK, non-EEA citizens could not sponsor their family members because their rights were parasitic on an EEA citizen’s rights.
   
2. Unlike EEA nationals, non-EEA nationals with limited leave under Appendix EU are not primary rights holders under the Withdrawal Agreement. They may have residence rights under the Withdrawal Agreement, but do not have the right to be joined by their family members. EU law routinely conferred preferential status upon EEA nationals as compared to non-EEA nationals.

Both of these justifications are open to challenge.

Parasitic status

In the examples given above, the non-EEA citizens right to reside in the UK is no longer parasitic on the EEA national’s free movement rights. EEA citizenship is not a reasonable proxy for determining whether a person’s rights are parasitic or independent.

Under EU free movement law, a child’s a right to reside in the UK was conditional on them continuing to satisfy the definition of “family member” in article 2(2) of the Citizens’ Rights Directive 2004/38/EC (the “CRD”) (Ali v Secretary of State for the Home Department [2024] EWCA Civ 1546 at [137]). Article 2(2)(c) of the CRD requires the child to be either under the age of 21 or dependant on their EEA national parent. Had the CRD continued to apply in the UK, this would provide a justification for the differential treatment between EEA and non-EEA citizens. However, the law changed on 31 December 2020 as a result of Brexit.

From that date, the CRD ceased to apply in the UK. From 1 January 2021, a child’s status in the UK was governed by the Withdrawal Agreement (per article 10(1)(e)(i)). Article 17(2) of the Withdrawal Agreement provides 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 is reflected in the definition of “child” within Annex 1 of Appendix EU. This only requires dependence if the child has not previously been granted pre-settled status whilst under the age of 21. If a child was granted pre-settled status whilst under the age of 21, they continue to qualify for pre-settled status, and in due course settled status, after turning 21 even if they are not dependent.

Furthermore, as is well known, the exercise of treaty rights by an EEA national is not required under the EU Settlement Scheme (see this Free Movement post for further details). As such, it is difficult to see how a child’s pre-settled status can be said to be parasitic on the status of their EEA national parent.

A similar argument could be made in relation to someone with a retained right of residence, whose status is no longer dependent on their relationship with their EEA citizen spouse.  

Furthermore, an EEA national whose rights under EU free movement law were parasitic on the rights of another EEA citizen can, nonetheless, be joined in the UK by their spouse. Some EEA citizens will have rights that are parasitic. Some will not. Some non-EEA citizens will have rights that are parasitic. Some will not. This does not provide an objective and reasonable justification for the differential treatment.

Primary rights holders

This justification slightly misses the point. It is correct that a non-EEA national family member is not a primary rights holder under the Withdrawal Agreement. This phrase appears to be used to denote someone who cannot be joined by family members under the Withdrawal Agreement. However, the inability to sponsor family members under the Withdrawal Agreement (and Appendix EU which implements that agreement in the UK) does not provide a justification for preventing someone from sponsoring their spouse under Appendix FM.

Paragraph E-ECP.2.1(d) of Appendix FM, and the limitation upon it imposed by paragraph GEN.1.3(d), do not implement a right which has been retained by EEA citizens and their family members under the Withdrawal Agreement. This was done as a matter of domestic policy as it was determined that it would be unfair to require EEA citizens to wait until they have obtained settled status before they can sponsor their spouse. It is unclear why it is not equally unfair to require non-EEA citizens to wait.

As a result of Brexit, all foreign nationals require leave to enter or remain in the UK regardless of whether they are an EEA or non-EEA national. One of the justifications for Brexit was to end the preferential treatment of EEA citizens. Where the marriage takes place after 31 December 2020, the spouse of an EEA national must make an application under Appendix FM. There is no longer any preferential treatment for EEA citizens.

The Home Office provides a route for almost all other migrants with limited leave to remain in the UK to be joined in the UK by their spouse. A migrant with limited leave to remain in the UK as a refugee or with humanitarian protection can sponsor their spouse under paragraph E-ECP.2.1.(c) of Appendix FM. A migrant with limited leave under the Points Based System – for instance as a Student or Skilled Worker – can sponsor their spouse under Appendix Relationship with a Partner.

These provisions apply equally to EEA and non-EEA nationals. An EEA national who began residing in the UK after 31 December 2020 must seek, and be granted, leave under the Points Based System. They are not entitled to leave under Appendix EU which applies only to EEA nationals who exercised their EU free movement rights before 31 December 2020.

As such, post-Brexit, it is difficult to see how the preferential treatment EU law conferred upon EEA nationals can provide a justification for the differential treatment in paragraph GEN.1.3(d).

Conclusion

All of this gives rise to a strong argument that paragraph GEN.1.3(d) unlawfully discriminates between EEA and non-EEA nationals contrary to article 14 ECHR, read with article 8 ECHR. Anyone whose application has been refused under this provision may wish to consider challenging the decision on this basis.