If you married an EU national in the UK after 31 December 2020, you can’t get leave to remain under the EU Settlement Scheme unless you previously had or applied for an EEA residence card or family permit as their durable partner. That remains the case even if you would have got married sooner but for the impact of Covid-19. So held the Court of Appeal in Celik v Secretary of State for the Home Department [2023] EWCA Civ 921, agreeing with the Upper Tribunal’s decision last year.

Mr Celik was in the UK unlawfully. He began a relationship with an Romanian national, Ms Ibram. They wanted to marry in 2020, but couldn’t because of Covid-19 restrictions. They eventually married in March 2021. Mr Celik then applied for leave to remain under the EU Settlement Scheme. The Home Office refused this because Appendix EU to the Immigration Rules said he needed to have been Ms Ibram’s spouse or ‘durable partner’ before 11pm on 31 December 2020, the end of the Brexit transition period. He wasn’t her ‘durable partner’ because he hadn’t applied for or been granted a ‘relevant document’ – a residence card or family permit issued under the Immigration (European Economic Area) Regulations 2016.

Mr Celik appealed. He argued that Appendix EU was inconsistent with the Withdrawal Agreement between the EU and the UK. Alternatively, he argued that it was unfair to refuse based on his inability to marry earlier, which was outside his control. The First-tier and Upper Tribunals dismissed his appeal; see the summary here.

Mr Celik appealed to the Court of Appeal.

The Withdrawal Agreement

The Court of Appeal agreed with the Upper Tribunal. Apart from EU nationals, the Withdrawal Agreement gives rights of residence to two categories of people. One is those who were ‘family members’ of EU nationals by the end of the transition period. This includes spouses, but it didn’t apply to Mr Celik because he wasn’t married in time. He argued that it was disproportionate to refuse him leave based on this requirement when external factors had stopped him from meeting it. Lord Justice Lewis, who gave the leading judgment, said that although the Withdrawal Agreement does refer to proportionality, it’s only in relation to people who have rights under the Agreement to begin with. It therefore didn’t help Mr Celik.

The other category of people is extended family members whose residence was ‘facilitated’ by the UK before the end of the transitional period or who had applied for it to be facilitated and were subsequently successful. Being facilitated in this context means having a relevant document. Mr Celik never applied for one, so he couldn’t benefit from the Withdrawal Agreement. He argued that the Home Office’s guidance hadn’t been clear about what he needed to do, but Lewis LJ said this was irrelevant. Whatever the guidance said, it couldn’t alter the meaning of the Withdrawal Agreement.

Discrimination

Article 12 of the Withdrawal Agreement prohibits ‘discrimination on grounds of nationality’ in relation to the grant of residence rights. Appendix EU allows someone to apply as the durable partner of a ‘relevant person of Northern Ireland’ even if they didn’t have or apply for a relevant document. Mr Celik argued that this more generous provision discriminated against the partners of people from other EU countries. Lewis LJ rejected this argument. Discrimination, he said, involves treating people in a materially analogous position differently without justification. Relevant people of Northern Ireland and their partners were not in a materially analogous position to Ms Ibram and Mr Celik because different arrangements had been in place for them before the end of the transition period. The difference in treatment therefore couldn’t be discrimination.

Fairness

Finally, Mr Celik argued that, because of the impact of Covid-19, fairness required him to be treated as if he had been married before the end of the transition period. He said that the Home Office should have introduced a policy for people in his position. Lewis LJ disagreed. He pointed out that Mr Celik hadn’t identified any legal principle in support of his argument. This underlines a point the courts have previously made, namely that there is no legal entitlement to a substantively fair outcome.

In any event, Lewis LJ added, the correct mode of challenge to the Home Office’s failure to introduce a policy was judicial review, not an appeal against the refusal of an individual application.

When is an EUSS application not an EUSS application?

The Court of Appeal also heard submissions from three intervenors: two charities and the Independent Monitoring Authority. They focused on an earlier application Mr Celik had made in 2020. Before he and Ms Ibram were married, he’d applied under the EU Settlement Scheme as her durable partner. The application was refused because he didn’t have a relevant document. The argument was that this should have been treated as an application for a residence card. If that was right, then the Home Office shouldn’t have refused it without an ‘extensive examination’ of Mr Celik’s circumstances, as required by the 2016 regulations.

The Court refused to consider this argument. Mr Celik hadn’t appealed against the refusal of the first application, so it was too late to raise the issue now. Nor had he raised it in the First-tier or Upper Tribunal, so no evidence had been considered about the content of the 2020 application. However, Lewis LJ did confirm that neither his nor the Upper Tribunal’s judgment meant that an EU Settlement Scheme application could never be treated as a residence card application. This leaves open the possibility for future cases of a successful argument along the lines of the one accepted in Entry Clearance Officer v Ahmed and others (unreported, UI-2022-002804-002809, discussed here.

What now?

A lot of people will be disappointed by the Court of Appeal’s decision. Many appeals raising the same issue have been delayed to await the outcome of Mr Celik’s case. Unless he goes to the Supreme Court, those appeals will now be dismissed.

So what are the options for someone who married an EU national in the UK after the end of the transition period? If they already have leave to remain in another category, they may still qualify under the EU Settlement Scheme. Alternatively, if they applied before the end of the transition period, they might want to attempt the argument made by the intervenors in Celik.

Otherwise, they will probably have to try their luck with a human rights claim. Under Appendix FM to the Immigration Rules, EU nationals with leave on the EU Settlement Scheme can sponsor spouse or partner applications. Lewis LJ’s judgment tells us that Mr Celik himself took this route after the Upper Tribunal’s decision; he now has leave to remain. Someone in the UK without leave will need to show either that they meet the onerous requirements of paragraph EX.1 or that there are ‘exceptional circumstances’ in their case. Alternatively, they can leave the UK and apply for entry clearance from abroad, but they run the risk of refusal depending on their immigration history. Anyone in this position would be well advised to seek legal advice now.