The child of an EU national is only entitled to stay in the UK after Brexit if they are under 21 or dependent on their parent, the High Court has held. In reaching this conclusion, the court in R (on the application of Ali) v Secretary of State for the Home Department [2023] EWHC 1615 (Admin) confirmed that the UK’s EU Settlement Scheme accurately reflects the Withdrawal Agreement between the UK and the European Union.

The facts

The claimant, Ms Ali, is a Bangladeshi citizen with an EU national mother. She arrived in the UK in 2014 with an EEA family permit issued under the Immigration (European Economic Area) Regulations 2006. This reflected her right of residence under EU law as the ‘family member’ of her mother. Before Brexit, the regulations (later replaced in 2016) and the EU Directive they were based on gave this right to the child of a ‘qualified person’ if they were under 21 or were dependent on their parent. Ms Ali was 19 when she arrived and therefore did not need to show dependency.

In 2015, Ms Ali was issued an EEA residence card valid for five years. She remained in the UK but became estranged from her mother. She has not been dependent on her since at least July 2016, when she was 20.

In 2019, Ms Ali applied for limited leave to remain (also known as pre-settled status) under the EU Settlement Scheme, which is set out in Appendix EU to the Immigration Rules. Her application was refused because she was over 21 and not dependent on her mother. She applied for administrative review but the refusal was maintained. She therefore lodged a judicial review claim.

The issues

The Withdrawal Agreement protects the rights of EU nationals and their family members after Brexit. Essentially, if the Withdrawal Agreement says someone should have a right of residence, the UK is required to grant them one. If the Immigration Rules don’t provide for this, then they are unlawful (as was found in this case concerning the entitlement to settlement after five years). Ms Ali accepted that she did not meet the Immigration Rules, but argued that the Rules didn’t accurately reflect the Withdrawal Agreement.

The Withdrawal Agreement says that people who were ‘family members’ under Article 2(2) of the Directive should continue to have a right of residence after Brexit under the Withdrawal Agreement. The definition of ‘family members’ includes the EU national’s ‘direct descendants who are under the age of 21 or are dependants’. Ms Ali didn’t fit this description by the time of her EUSS application as she was over 21 and not dependent. She argued that this didn’t matter and it was enough that she had previously been recognised as a ‘family member’ when granted the residence card.

Ms Ali relied on Reyes v Migrationsverket [2014] EUECJ C-423/12, a decision of the Court of Justice of the European Union we discussed here. In that case, the court dealt with the meaning dependency under the Directive. One of its conclusions was that a person can be dependent even if they intend to take up employment in the future.

Ms Ali argued that this meant a direct descendant who had been recognised as a ‘family member’ in the past would still have a right of residence even if they became self-supporting and so ceased to be dependent. They were therefore protected under the Withdrawal Agreement.

Alternatively, Ms Ali argued that even if she was wrong about the effect of Reyes the Withdrawal Agreement still guaranteed her a right of residence. She pointed to Article 17(2), which says:

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.

Ms Ali said this meant that if the child of an EU national had been dependent at any point before the end of the transition period (11pm on 31 December 2020), they had a right of residence after that, regardless of when the dependency had ended.

The judgment

Mr Justice Lane, who heard the case in the High Court, rejected Ms Ali’s arguments. The European Court, he pointed out, confines itself to answering the questions referred to it by national courts. In Reyes, those questions did not include the issue now raised by Ms Ali, and it was impossible to draw from its decision the wider principle she contended for. He drew attention to Article 14(2) of the Directive, which provides 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 out therein’. This, he said, means they have to continue meeting the definition of ‘family member’, which requires being under 21 or dependent.

As for the Article 17(2) argument, Lane J acknowledged its ‘superficial attraction’ but concluded that, read in context, the phrase ‘before the end of the transition period’ referred to the period immediately before 31 December 2020. It was not enough to have been dependent at some point in the past. He also rejected the separate suggestion that it was irrational for the Rules to treat Ms Ali differently to a family member who did not have a residence card before applying to the Settlement Scheme.

As it was agreed that Ms Ali was not dependent on her mother when she applied to the EU Settlement Scheme, her judicial review claim was dismissed.

Comment

Before Brexit, experience showed that applicants previously granted residence cards based on dependency were expected to show that it had continued before they could be granted permanent residence documents. Lane J’s judgment, which confirms this interpretation of EU law, is therefore unsurprising. Ms Ali’s case follows in the footsteps of Celik (EU exit, marriage, human rights) [2022] UKUT 220 (IAC) in illustrating that non-EU nationals in the UK are unlikely to benefit from the Withdrawal Agreement if they didn’t have a right of residence before Brexit.