Here for Good and the AIRE Centre made written and oral submissions in the case of Celik v SSHD as joint interveners, represented by Thomas de la Mare KC and Parminder Saini, and instructed by Herbert Smith Freehills. The Independent Monitoring Authority for the Citizens’ Rights Agreements (IMA) also intervened in the proceedings and published a statement following the judgment.
For more background on this case, we previously covered the facts in this blog post.
In our joint intervention, we submitted that an application for leave to remain as a durable partner made before the end of the transition period under the Scheme only (instead than under the EEA Regulations and then under the Scheme) can be treated as an application for facilitation of residence under the Article 3(2) of Directive 2004/38/EC, and as such falls under and attracts the protection of the Withdrawal Agreement. We submitted that in this event, the SSHD should not reject the application as formally defective considering only domestic rules, but must instead recognise the substance of the application and resolve it on its merits following an ‘extensive examination’ of the applicant’s circumstances. This was supported in our intervention by EU principles such as of good administration and proportionality.
The Court of Appeal handed down its judgment on this matter on 31 July 2023. The judgment considers the interventions at paras 82 to 98. A helpful summary of the judgment can be found here.
As indicated in our previous blog post, Mr Celik made two applications to the EUSS – one in 2020 before the end of the transition period (31 December 2020), and one in 2021 after he had married his partner. Both applications were refused by the SSHD due to a lack of residence card to qualify him as a durable partner as required by the EEA Regulations 2016 before the end of the transition period.
The judgment makes clear that the proceedings at hand concern only the appeal of the second application to the EUSS made by Mr Celik in 2021. He did not appeal to the First-tier Tribunal or the Upper Tribunal on the basis that the application he made should be treated as an application for a residence card. As such, the Court of Appeal did not consider the arguments and decision connected to the first application.
Whilst this means that the arguments advanced in our intervention were not decided in this judgment, the Court of Appeal nevertheless indicated that this issue can be decided in a case where this arises from the facts (see paragraphs 96 and 97). This indicates that neither this, nor the Upper Tribunal’s judgments mean that a durable partner application made before the end of the transition period under the EU Settlement Scheme could never be treated as a residence card application. This can be useful to distinguish other matters that may rely on more favourable facts from the present one in current or future litigation.
We remain keen to investigate the situation of durable partners under the Scheme in general, and specifically the issue of those, who for various reasons, were not aware of their need to make an application for a residence card before the end of the transition period.
If you are a representative or an advisor who would like to discuss further the points raised in this intervention please get in touch with us via our referral inbox – referrals@hereforgoodlaw.org.
If you yourself are affected by this judgment, or who finds yourself in a situation similar to Mr Celik’s, but are appealing a EUSS application made as a durable partner before the end of the transition period, please get in touch via our referrals inbox – referrals@hereforgoodlaw.org.
Bianca Valperga, EUSS Legal Policy Officer and Caseworker, Here for Good
