IMA statement following Court of Appeal judgment relating to durable partners under the EU Settlement Scheme
The Independent Monitoring Authority for the Citizens’ Rights Agreements (IMA) intervened within the proceedings of Celik (‘the applicant’) v Secretary of State for the Home Department (‘the SSHD’). The proceedings were before the Court of Appeal, on appeal from the Upper Tribunal.
The proceedings concerned an appeal of a decision by the SSHD to reject an application to the EU Settlement Scheme (‘the EUSS’). The applicant had made two applications to the EUSS, one in 2020 before the end of the transition period (31 December 2020) and one in 2021, after the end of the transition period. Both were refused by the SSHD.
The IMA considered this case raised important questions regarding the interpretation of the Withdrawal Agreement and intervened with the aim of seeking to assist the Court to determine these questions. The AIRE Centre and Here for Good also intervened in the proceedings.
The focus of the IMA’s intervention was on the first application to the EUSS submitted by the applicant. Specifically, whether that application fell within Article 10(3) of the Withdrawal Agreement, and therefore its treatment by the SSHD was subject to the requirements of that Agreement.
In order to benefit from the requirements of the Agreement, the applicant has to fall within its scope.
For extended family members, in order to be within scope of the Agreement, they are required to have had their residence facilitated in the UK prior to the end of the transition period (31 December 2020) or had a pending application for facilitation of residence at that time. Such facilitation in the UK was by way of obtaining or applying for a residence card.
Extended family members include durable partners. A durable partner is where two citizens have lived together in a relationship akin to a marriage or civil partnership for at least two years (or have other evidence to show that the relationship is serious).
The applicant had not obtained a residence card before the end of the transition period. The key question for the IMA was whether their application to the EUSS should be treated as an application for a residence card and therefore subject to the requirements of the Withdrawal Agreement. The SSHD considered the application to the EUSS not to be such an application for a residence card as such an application had to be made via a different route, namely on a different form under the EEA Regulations[1].
The IMA and the other interveners submitted to the Court of Appeal that an application for leave to remain as a durable partner under the EUSS, submitted before 11pm on 31 December 2020, can be treated as an application for facilitation of residence falling within Article 10(3) of the Withdrawal Agreement, attracting its protections.
The hearing took place before the Court of Appeal on 4 and 5 July and the IMA made written and oral submissions. You can read the IMA’s skeleton argument via the website.
The Court of Appeal handed down their judgment on 31 July. It can be found on their website. The applicant lost his appeal.
The Court of Appeal held that the proceedings concerned an appeal of the second application to the EUSS made by the applicant in 2021. It therefore did not consider the decision of the SSHD on the first application and did not decide whether or not an application to EUSS made before the end of the transition period (31 December 2020) was, or was to be treated as, an application for a residence card. The Court of Appeal indicated that this issue will need to be decided in a case in which it arises for decision on the facts (see paragraphs 96 and 97 of the Court of Appeal judgment).
The IMA encourages any citizen experiencing difficulties in exercising their rights to make them aware of this through their online portal. Further information about the IMA and guidance on how to report complaints can also be found on the IMA’s website.
The IMA is keen to hear about any litigation relating to Part 2 of the Withdrawal Agreement or EEA EFTA Separation Agreement and would encourage those litigating in this area to forward details to litigation@ima-citizensrights.org.uk.
Notes:
- The 158th Practice Direction amendments which supplement the Civil Procedure Rules 1998 were updated in July 2023 so that when a party serves a statement of case in civil proceedings which raises a citizens’ rights issue, that party must send a copy of the statement of case to the IMA at the same time.
[1] Immigration (European Economic Area) Regulations 2016