The applicant was a failed asylum seeker who was in a relationship with an EU national and made on 19 October 2020 made an application for Pre-Settled Status through the EU Settled Status Scheme (EUSS). On 20 March 2021, the application was rejected by the Home Office, as he had not been issued with a document under the Immigration (European Economic Area Regulations 2006).as an extended family member and therefore was not a family member for the purposes of the EUSS.
The applicant challenged the decision, on the basis that on 20 October 2020 he had applied for permission to marry through his local authority for immigration purposes, but due partially to lockdown was unable to get married before 31 December 2020 – the departure date of the UK from the EU. The applicant argued that his inability to marry by the departure date should have been considered favourably.
At his first appeal the applicant raised an article 8 argument, but this was rejected, however permission was subsequently granted to appeal the decision based on the grounds of proportionality.
The court referred to the applicable laws and noted an applicant can make a Section 120 statement through the Immigration, Asylum and Nationality 2002 Act to raise additional grounds and referred to the fact it should not consider a new matter without the consent of the Secretary of State pursuant to Regulation 9 (5) of the Immigration (Citizenship’ Rights Appeals) (EU Exit) Regulations 2000.
The court rejected the proportionality argument based on the applicant was unable to get married by 31 December 2021, despite providing notice:
‘We agree with Ms Smyth’s submission that the clarity provided by Article 10 of the Withdrawal Agreement reflects the intention of the United Kingdom and the EU that the Agreement should ensure an orderly withdrawal of the UK; protect only those United Kingdom and EU citizens who were exercising free movement rights before a specific date’
The court observed a failure to make an immigration application as a durable partner before the departure date and inferred such an application may have led to a different legal argument and consequently decision on proportionality.
The court noted it had jurisdiction to consider a human rights argument in immigration cases but rejected a claim could arise through EU Charter or retained laws. It determined it could consider a human rights claim, but only with the consent of the Secretary of State.
The case sheds further light on those who were not married pre-31 December 2021 and how their claims will be treated. It is now of limited value as it is unlikely unmarried partners will make applications now due to the passage of time – and they would need to show their relationship were recognised under EU law pre the UK’s departure from the EU and provide a good reason for a late application. The case however clarifies that although human rights claims can be considered by a court, it must be with the Home Office’s consent – from experience this is unlikely to be granted in any immigration case by the Home Office.
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