Many predicted that the heady mix of Brexit and COVID-19 would result in litigation, and so it has come to pass. Ending EU free movement law in the middle of a global pandemic – when people faced difficulty travelling, marrying, and getting advice from an immigration lawyer – was bound to cause problems.

For Mr Celik, a Turkish national living in the UK, the problem he faced was an inability to marry his Romanian partner before 31 December 2020.

In Celik (EU exit; marriage; human rights) [2022] UKUT 00220 (IAC) the Upper Tribunal has decided that he — and anyone else in a similar situation — cannot benefit from the EU Settlement Scheme.

Unmarried couples did not have automatic rights under EU free movement law in the same way that direct family members, such as spouses, did. This meant that they had to apply for a residence document under the Immigration (EEA) Regulations 2016 or marry before 31 December 2020 – when EU law ceased to apply in the UK.

The Tribunal also decided that appellants cannot rely on their human rights in EU Settled Status appeals unless the Home Office consents to this. This will aspect of the decision will be considered in a separate blog post, coming soon. 

Is the requirement to apply for a residence document proportionate?

Mr Celik argued that the requirement to apply for a document under EU free movement law first was unfair, disproportionate and contrary to the Withdrawal Agreement.

The Upper Tribunal held that the Withdrawal Agreement only applies to those whose residence has been “facilitated” by the UK before Brexit:

“There can be no doubt that the appellant’s residence in the United Kingdom was not facilitated by the respondent before 11pm on 31 December 2020. It was not enough that the appellant may, by that time, have been in a durable relationship with the person whom he married in 2021. Unlike spouses of EU citizens, extended family members enjoyed no right, as such, of residence under the EU free movement legislation.” [52]

Although the Withdrawal Agreement does not generally apply, the provision requiring redress procedures which ensure that the decision is not disproportionate (article 18.1(r)), does apply:

“The parties to the Withdrawal Agreement must have intended that an applicant, for the purposes of sub-paragraph (r), must include someone who, upon analysis, is found not to come within the scope of Article 18 at all; as well as those who are capable of doing so but who fail to meet one or more of the requirements set out in the preceding conditions.” [62]

In practice, though, this was not of much use to Mr Celik:

“The nature of the duty to ensure that the decision is not disproportionate must, however, depend upon the particular facts and circumstances of the applicant. The requirement of proportionality may assume greater significance where, for example, the applicant contends that they were unsuccessful because the host State imposed unnecessary administrative burdens on them. By contrast, proportionality is highly unlikely to play any material role where, as here, the issue is whether the applicant falls within the scope of Article 18 at all.” [63]

Given that he could not bring himself within the scope of the Withdrawal Agreement and the EU Settled Status Scheme, due to failing to either marry or apply for a residence document before 31 December 2020, it would be surprising if the decision was disproportionate:

“…the appellant’s attempt to invoke the principle of proportionality in order to compel the respondent to grant him leave amounts to nothing less than the remarkable proposition that the First-tier Tribunal Judge ought to have embarked on a judicial re-writing of the Withdrawal Agreement.” [65]

A similar issue was considered by the Tribunal in Batool and others (other family members: EU exit) [2022] UKUT 00219 (IAC). The free movement write up can be read here.

COVID-19 preventing marriages

The other way for a durable partner to obtain a right to reside under EU free movement law was to marry.

Organisations such as the Immigration Law Practitioners’ Association, the 3 million and Here for Good have highlighted the problems the COVID-19 pandemic caused for couples wanting to marry before 31 December 2020. The Home Office was urged to provide a concession for those whose marriages had been scheduled prior to Brexit but were postponed due to the pandemic.  However, in a letter issued in February 2022, the Minister of Immigration indicated that, as people could still apply for a document as a durable partner, there was no need for a concession.

In Celik the appellant attempted to challenge this decision. The Upper Tribunal did not accept that a concession was necessary:

“…any such public law challenge is rendered hopeless by the fact that (as the present case illustrates) those who marry are highly likely to regard themselves as being in a durable relationship. Accordingly, a person in the position of the appellant could and should have applied to the respondent for facilitation (and, thus, recognition) of their position as an extended family member. The fact that marriage makes the non-EU citizen the possessor of an underlying right, whereas being in a durable relationship with such a person does not automatically do so, is insufficient to demonstrate that the respondent committed a public law error in not providing some form of concession for those whose weddings were likely to have taken place before 31 December 2020, but for Covid-19.” [78] Celik

This rather ignores the fact that COVID-19 may have also prevented many from making applications for facilitation under the Immigration (EEA) Regulations 2016. Perhaps that will be the subject of future litigation.

An unsupported assertion that it was not possible to make an application is unlikely to be accepted by the Tribunal. However, someone who can demonstrate that they were unable to apply in time due to unnecessary administrative burdens caused by the COVID-19 pandemic may be able to demonstrate that refusal is disproportionate. This would be particularly true if the process the Home Office requires is not one required by EU law (See Rehman (EEA Regulations 2016 – specified evidence) [2019] UKUT 195 (IAC) and the subsequent free movement write up).

And finally, the official headnote:

(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.

(3) Regulation 9(4) of the 2020 Regulations confers a power on the First-tier Tribunal to consider a human rights ground of appeal, subject to the prohibition imposed by regulation 9(5) upon the Tribunal considering a new matter without the consent of the Secretary of State.