Halil Celik v The Secretary of State for the Home Department

A person in a durable relationship with an EU citizen acquired no substantive rights under the Withdrawal Agreement merely because the relationship existed before the end of the transition period. Entry or residence had to have been facilitated, or an application for facilitation made, by 11pm GMT on 31 December 2020.

Where those conditions are absent, proportionality and fairness cannot authorise a tribunal to treat a later marriage, including one delayed by Covid-19, as occurring before the specified date. Regulation 9(4) of the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 permits consideration of a human rights ground, but regulation 9(5) prevents consideration of that new matter without the Secretary of State’s consent.

The appellant, a Turkish national, had been in a relationship with a Romanian national living in the United Kingdom. He gave notice of marriage in October 2020, but the marriage took place on 9 April 2021. His application under the EU Settlement Scheme was refused because he lacked the relevant document as a durable partner and was not married before the specified date.

The First-tier Tribunal dismissed his appeal. The appellant argued before the Upper Tribunal that the Withdrawal Agreement required proportionality and fairness to be considered, that Covid-19 justified treating the marriage as timely, and that the tribunal could consider Article 8 of the ECHR. The central issues were whether he fell within the personal scope of the Withdrawal Agreement and whether the First-tier Tribunal had jurisdiction to consider the human rights ground.

1. Withdrawal Agreement rights. The appellant was outside Article 10 of the Withdrawal Agreement. His residence as a durable partner had not been facilitated before the end of the transition period, and he had not applied for facilitation in accordance with the Immigration (European Economic Area) Regulations 2016. A durable relationship alone did not confer a substantive right of residence.
2. Proportionality and fairness. Article 18.1(r) could apply procedurally even where an applicant was ultimately found outside the substantive scope of Article 18. Its proportionality requirement had little or no material role where the issue was whether the applicant fell within the scope of the Agreement. It could not permit the tribunal to rewrite the Agreement or treat a post-transition marriage as timely. The same conclusion applied to the principle of fairness, even assuming that Covid-19 had prevented an earlier wedding.
3. EU principles and public law. EU law, the Citizens’ Rights Directive and the Charter of Fundamental Rights could be relied on only where the Withdrawal Agreement required it. The respondent’s guidance concerned flexibility in evidence and timing; it did not alter the substantive requirements. The refusal to create a Covid-19 concession disclosed no public law error.
4. Appeal grounds. Regulation 8 supplied the relevant grounds of appeal and gave the First-tier Tribunal no general power to allow an appeal on fairness or public law grounds. The decision was in accordance with Appendix EU, because the effective obstacle was the post-transition marriage.
5. Human rights jurisdiction. Regulation 9(4) conferred power to consider a human rights ground because the substance of the decision was the refusal of leave to enter or remain generally, rather than refusal under Appendix EU alone. A human rights claim would ordinarily be a new matter. Since the respondent had not consented, regulation 9(5) prevented its consideration. The First-tier Tribunal’s reasoning on the scope of regulation 9(4) was mistaken, but the error was immaterial.
6. The appeal was dismissed and the First-tier Tribunal’s decision was not set aside.

• First-tier Tribunal: Judge Hyland dismissed the appellant’s appeal on 22 December 2021.
• Upper Tribunal (Immigration and Asylum Chamber): Permission to appeal was granted, but the appeal was dismissed. The First-tier Tribunal had made no material error of law.