In the judgement in Celik (EU exit; marriage; human rights) [2022] UKUT 00220 (IAC) published on 10 August 2022, the Upper Tribunal considered the rights of partners of EEA nationals who were unable to marry before the specified date, and also the question of whether human rights grounds of appeal could be raised in an appeal against the refusal of an application under the EU Settlement Scheme.

Facts of the Appeal in Celik

The Appellant was a citizen of Turkey who had arrived in the UK in 2007 and claimed asylum. His claim was refused, and his subsequent appeal was not successful. The Appellant remained in the UK without status.

The Appellant entered into a relationship with a Romanian national in December 2019. The couple began cohabiting in or after February 2020. On 19 October 2020, the Appellant made an application for leave to remain under the EU Settlement Scheme. This application was refused on the basis that the Appellant had not been issued with a registration certificate, family permit or residence card under the EEA Regulations as the durable partner of an EEA national. The Appellant did not appeal against that refusal.

On 19 September 2020, the Appellant proposed to his partner. On 20 October 2020, he gave notice to the Registry Office, but was unable to marry before 31 December 2020 due to Covid-19 restrictions in place at the time. They married on 9 April 2021.

Following his marriage, the Appellant made an application for leave to remain under the EU Settlement Scheme on the basis that he was the spouse of an EEA national. On 23 June 2021, this application was refused as it was not considered that the Appellant had provided sufficient evidence that he was the family member (i.e. a durable partner) of a relevant EEA national prior to the specified date.

First-tier Tribunal's Decision in Celik

The First-tier Tribunal appeal was heard on 22 December 2021. It was held that the Appellant could not have met the definition of a durable partner as he did not hold a relevant document as the durable partner of the relevant EEA citizen (i.e. a residence card issued under the EEA Regulations). Such a document was required under the definition of 'durable partner' under Appendix EU. He therefore could not meet the requirements of paragraph EU14 of Appendix EU. The First-tier Tribunal Judge further considered that human rights grounds of appeal could not be raised under the The Immigration (Citizens' Rights Appeals) (EU Exit) Regulations 2020.

The Appellant's representatives relied on the principle of fairness, as well as proportionality under the Withdrawal Agreement. They also argued that the principles in the Respondent's guidance regarding problems with obtaining certain documents due to Covid-19 should also be applied in this case. The First-tier Tribunal Judge did not accept this argument, as the Appellant had not made any application as a durable partner under the EEA regulations when he could have done so.

Permission to appeal was granted on 1 March 2022, partially on the basis that the First-tier Tribunal Judge had arguably erred in law in not addressing the Appellant's argument that Article 18(1)(r) of the Withdrawal Agreement (2019/C 384 I01) "requires an examination of the proportionality of the [respondent's] decision".

Upper Tribunal's Decision in Celik

Article 18(1)(r) of the Withdrawal Agreement

It was argued on behalf of the Appellant that he fell within the scope of the protections contained in Title II of Part 2 of the Withdrawal Agreement. This encompassed condition (r) of Article 18, which allows for judicial and (where appropriate) administrative redress procedures against any decision to grant residence status; and provides that such redress procedures should ensure that a decision is not disproportionate. It was argued that the First-tier Tribunal Judge should have considered proportionality in light of the factors beyond the Appellant's control that prevented his marriage prior to the specified date.

The Upper Tribunal found that the Appellant did not fall within the scope of Part 2 of the Withdrawal Agreement, which contains Article 18. This was because he was not a person who resided in the United Kingdom in accordance with Union law before 11pm on 31 December 2020 and who continued to reside within the United Kingdom thereafter. It was not sufficient that the Appellant may have, by that date, been in a durable relationship, as the rights of extended family members only arose upon their residence being facilitated by the Respondent, evidenced by a residence permit, registration certificate or residence card. If the Appellant had submitted an application for such a document, Article 10.3 would have brought him within the scope of Article 18, but this was not the position as no such application had been made. It was further held that the Appellant's subsequent marriage, after the specified date, did not bring him within the scope of the Withdrawal Agreement.

The Upper Tribunal did consider, at paragraph 63, that although the Appellant did not fall within the scope of Article 18, sub-paragraph (r) may still apply in some circumstances nonetheless. However, they found that the nature of the duty to ensure that the decision is not disproportionate must depend upon the particular facts and circumstances of the applicant. In this case, the issue was whether the Appellant fell within the scope of Article 18 at all, rather than, for example, them being unsuccessful in their application due to the imposition of unnecessary administrative burdens. In the latter case, it was held that the requirement of proportionality may assume greater significance, whereas in the former case it was highly unlikely to play a material role. In the Appellant's circumstances, it was held that invoking the principle of proportionality against this background required a "judicial re-writing" of the Withdrawal Agreement, and that the First-tier Tribunal Judge had been correct not to engage in such a re-writing.

Equally, it was considered that the principle of fairness could not assist the Appellant, as it does not give a Judge the power to disregard the Withdrawal Agreement. The Upper Tribunal also agreed with the Respondent's submission that the Appellant cannot have regard to EU principles of law, the Citizens' Rights Directive or the Charter of Fundamental Rights, except to the extent that this is required by the Withdrawal Agreement.

The provisions of Appendix EU

The Upper Tribunal agreed with the Respondent's argument that the sole effective reason why the Appellant was refused limited leave to remain under Appendix EU was that he had married his partner after 31 December 2020. The Upper Tribunal found that, as they had rejected the argument that the Appellant was entitled to succeed in his appeal by reference to the Withdrawal Agreement, it followed that the First-tier Tribunal Judge would not have been entitled to disregard or "read down" the relevant Immigration Rules.

Public law grounds and discrimination

The Upper Tribunal confirmed that Regulation 8 of the 2020 Regulations does not grant the First-tier Tribunal jurisdiction to allow an appeal on the ground that the respondent's decision was "not in accordance with the law" (on public law grounds). However, they found that even if that were not the case, the respondent's decision could not be said to be infected with a public law error. There was no irrationality in a refusal to introduce a process which would not have been mandated by the Withdrawal Agreement or the related immigration rules. The Upper Tribunal also did not consider the Appellant (or the Sponsor) to be able to succeed in an argument that they had been discriminated against contrary to Article 12 of the Withdrawal Agreement.

Article 8 ECHR

Although it could not assist the Appellant in this case, there was more positive news in respect of arguing human rights grounds of appeal in EUSS cases. The Upper Tribunal confirmed that regulation 9(4) confers a power on the First-tier Tribunal to consider a human rights ground, subject to the prohibition of regulation 9(5) upon the Tribunal considering a new matter without the consent of the Respondent. In this case, as the Respondent's consent had not been sought, any error by the First-tier Tribunal Judge in respect of the ambit of Regulation 9(4) was immaterial.

Commentary on the Upper Tribunal Decision in Celik

The Upper Tribunal was clear in this case that those residing in the UK who claim to be durable partners prior to the specified date but did not hold a relevant document showing this, and could not marry before the specified date, will not normally be entitled to rely on any of the varied rights and principles advanced on behalf of the Appellant in this case. These include the principle of proportionality under the Withdrawal Agreement, EU principles of law, any flexibility in the Immigration Rules themselves, public law grounds or discrimination. Given that the Appellant was not married prior to the specified date, his failure to submit an application under the EEA Regulations to facilitate his residence in the UK as durable partner, prior to this date was considered to ultimately preclude him from the above protections.

However, the decision from the Upper Tribunal does not preclude all potential routes for those in similar circumstances to the Appellant. Firstly, it remains possible for an individual who was residing outside the UK prior to the specified date or an individual who has since broken their continuity of residence in the UK (for example, through an absence of more than six months in a 12 month period) to make an application as a "joining family member" under Appendix EU (Family Permit) — and in this case, no "relevant document" (or application for such a document) would be required under the Rules to demonstrate that a relationship was durable prior to the specified date. In such cases, where a couple may have been prevented from marrying before the specified date and had cohabited for less than 2 years prior to that date, there may remain scope for arguments that an Applicant may meet the requirements of the Immigration Rules on the basis of providing "other significant evidence" of a durable relationship prior to that date. This would of course depend on an examination of the circumstances of the applicant at the relevant time, but it remains the case that not all doors are closed for those in similar circumstances to the Appellant.

It also is notable that the possibility of raising Article 8 in EUSS appeals (with the consent of the Respondent) was acknowledged by the Tribunal. This can be seen from a plain reading of the 2020 regulations but represents a significant departure from the established principles in appeals under the EEA Regulations that such matters could not be raised.

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