IMMIGRATION LAW UPDATE: UPPER TRIBUNAL RULES ON EUSS CASES

Today I AM GOING TO be talking about What now for EUSS marriage cases after Celik (EU exit; marriage; human rights) [2022] UKUT 00220 (IAC)?

On the face of it and for the reasons set out below this is not a good decision for EUSS appeals - though it does open the door to those who might well be refused under EUSS to utilise article 8 or to make applications based on marriage and article 8.

A further glimmer of light is that it is now open for people to make applications from abroad to join someone with pre - settled status as opposed to settled status so this may well provide a solution that is both legal and potentially more successful than fighting on in the UK.

If you are facing an EUSS appeal it might well be a good idea to get advice and see what can be done.

It brings me no pleasure to go into the details of the case but it does merit a video as it effects a potentially large number of people and I suppose the only hope is that the Court of Appeal gets to look at this matter more closely.

On a personal note I find it galling that because of the government’s decision to put into place Covid lockdowns people are effectively being punished as the HO did not extend the transitional period for all EUSS applicants.

The decision in Celik (EU exit; marriage; human rights) [2022] UKUT 00220 (IAC) is one which deals with a type of case that we deal with on a regular basis at Imperium Chambers. Although the case of Celik concerned a Turkish national, our “standard” usually involve Albanian or Algerian clients. The facts of Celik, and our cases, go like this:

The Applicant is in the UK unlawfully, and forms a relationship with an EU national sometime in 2019 or 2020. They may begin to live together during this period, and become engaged. As everyone knows, in 2020 the UK was in lockdown for most of the year.

Many people were unable to get married because registry offices were closed. Even after they opened, they had huge backlogs. Many of our clients could not marry until after 31 December 2020.

This is crucial, because it is the end-date of the UK’s Post-EU exit transition period. If a person was married to an EU national before this date, they met the definition of a “spouse” under the EU Settlement Scheme. If they were not married before this date, they did not meet the definition of a “spouse” because they no longer had the benefit of the EUSS or the EEA Regulations 2016 in the same way.
We are aware that a couple of these cases have been heard by the UT, but the case of Celik is the first reported case on the issue.
There does remain hope, however. We are unsure if the Appellant in Celik is appealing against the decision, but there are doubtless a large number similar cases pending in the Upper Tribunal – many of these are our clients. This is likely not the last case on this issue. Further, Celik did not deal with the arguments we have made on Appellants being able to rely on the EEA Regulations 2016.

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