Here for Good and the AIRE Centre have been granted permission to jointly intervene in the Court of Appeal case Celik v The Secretary of State for Home Department (CA-2022-002008). See the Upper Tribunal judgement  UKUT 00220) here.
The case concerns a non-EEA national (Mr Celik) and his application to remain in the UK relying on his relationship to a EEA national. The couple met online in December 2019, and in person the following month and started cohabitating in February 2020. They decided to get married and contacted the council to register this intention in October 2020. Because of the Covid-19 restrictions that were in place at the time, they were not given a date to marry until 9 April 2021.
Mr Celik made two applications for leave to remain in the UK under the EUSS, one in October 2020 as a durable partner of an EEA national which was refused in March 2021 and a second application as the spouse of an EEA national which was refused in June 2021. In both decisions, the reason for refusal was that the required evidence of a family relationship has not been provided as Mr Celik was not in possession of a valid family permit, registration certificate or residence card under the EEA Regulations as of 31 December 2020 as required by Appendix EU.
Here for Good together with ILPA and the3million addressed these issues in two letters sent to the Home Office. These letters concerned couples who intended to get married before December 2020 but couldn’t because of the impact of Covid-19 restrictions; as well as the general lack of awareness and clear information for durable partners of their need to first obtain a EEA Regulations document as requested by Appendix EU before applying as durable partners under the Scheme.
One of our recommendations in the letters was for the Home Office to treat any such application for status under the EU Settlement Scheme made by the 31 December 2020 as an application for a Residence Card made under the EEA Regulations 2016. The response of the Home Office on this last point was that a durable partner could only be considered as falling under the scope of the Withdrawal Agreement (WA) and Appendix EU if their residence in the UK was facilitated in accordance with the Free Movement Directive before the end of the transition period, by obtaining a relevant document under the EEA Regulations. In short the Home Office maintained their position that only durable partners who had previously applied under the EEA Regulations to obtain a residence card will be able to apply under the Scheme as durable partners, irrespective of the impact of the Covid-19 pandemic or of the lack of clarity around this dual system.
Mr Celik’s case was first heard in the First Tier Tribunal and his appeal was dismissed in January 2022. Permission to appeal to the Upper tribunal (UT) was granted and a hearing was held in June 2022. The UT dismissed the appeal and found that a durable partner did not fall within the definition of those protected by the WA unless they had applied for facilitation of entry and residence before 11 pm on 31 December 2020 (meaning they had applied for a family permit or a residence card under the EEA Regulations) and this was granted to them by 31 December 2020, or it was being facilitated. Where a durable partner has not done so they will not be able to rely on the concept of proportionality or fairness under the WA.
Several interesting points are raised by this case such as the interaction between the Covid-19 pandemic and the end of the transition period in December 2020; the correct interpretation of Part 2 of the WA and its personal scope; the applicability of the proportionality concept under EU law and as provided for in the Withdrawal Agreement; and the complicated relationship between the Withdrawal Agreement, the Citizen’s Rights Directive, the 2016 EEA Regulations and Appendix EU.
The hearing in Mr Celik’s Court of Appeal case is listed for 4 – 5 July 2023. Here for Good and the AIRE Centre will jointly make oral and written submissions in the case.
Bianca Valperga, EUSS Legal policy adviser and caseworker, Here for Good.