Celik v Secretary of State for the Home Department

The Court of Appeal dismissed the appellant's challenge to the Upper Tribunal's decision refusing leave to remain. The principal legal issue was the correct interpretation of Part Two of the Withdrawal Agreement, in particular Article 10 (personal scope) and Article 18(1)(r) (proportionality of refusals of the new residence status). The court held that Article 10(1)(e)(i) applies only to persons who were family members (for example spouses) and who were residing in the host State in accordance with Union law before the end of the transition period (11pm on 31 December 2020); a marriage after that date cannot be treated as if it had already occurred for the purposes of the Agreement.

The court rejected arguments that good faith, teleological interpretation, the effects of the Covid-19 pandemic, or the proportionality requirement in Article 18(1)(r) required the United Kingdom to treat the appellant as if he had the relevant status at the specified date. The court further held that Articles 10(2) and (3) require an application under national law that resulted, or results, in the facilitation of residence (for example by grant of a residence card) and cannot be satisfied merely by the existence of enabling domestic legislation or guidance. The interveners' argument that the appellant's first application (25 August 2020) should have been treated as an application under regulation 18 (a residence card) was not decided because that application was refused and was not appealed.

Background and parties. The appellant, a Turkish national, arrived in the United Kingdom in 2017 and remained unlawfully after refusal of asylum. He began a relationship with a Romanian national, Ms Ibram, in late 2019 and they cohabited in 2020. The appellant applied on 25 August 2020 as an unmarried (durable) partner under the EUSS; that application was refused on 2 March 2021 and was not appealed. He subsequently married Ms Ibram on 9 April 2021 and applied on 17 March 2021 for leave to remain as a spouse; that application was refused (23 June 2021). The First-tier Tribunal and the Upper Tribunal dismissed his appeals; he appealed to the Court of Appeal.

Nature of the proceedings and relief sought. This was an appeal against the Upper Tribunal's dismissal of the appellant's appeal. The appellant sought to be recognised as within the personal scope of Part Two of the Withdrawal Agreement (so as to obtain EUSS residence status) either as a spouse under Article 10(1)(e)(i) or as an extended family member whose residence had been facilitated under Article 10(2) or (3). He also advanced arguments based on proportionality (Article 18(1)(r)), the Charter, the European Convention on Human Rights, discrimination and public law/fairness, and challenged aspects of the Upper Tribunal's interpretation of the domestic rules (Appendix EU) and the Regulations.

Issues framed by the court. The court addressed (i) whether Article 10(1)(e)(i) can be interpreted to treat a person who married after the transition date as if married before that date; (ii) whether Articles 10(2)/(3) are satisfied by the mere existence of domestic facilitative mechanisms or by an application made under a different domestic scheme; (iii) the role of Article 18(1)(r) proportionality in conferring status where the Withdrawal Agreement otherwise does not; (iv) whether domestic guidance, Covid-19 restrictions, or fairness/public law principles required a different outcome; and (v) related points on the Charter, the Convention and alleged discrimination in the EUSS evidential requirements.

Reasoning and conclusion. The court interpreted the Withdrawal Agreement according to its ordinary meaning in context and its object and purpose. It concluded that Article 10(1)(e)(i) unambiguously covers only those who were family members and were resident in accordance with Union law before the end of the transition period; it would be contrary to the Agreement to treat later marriages as falling within that category. Articles 10(2) and (3) require an individual application that results (or will result) in facilitation of residence under national law (for example a residence card); mere enabling domestic legislation or the existence of the EUSS did not suffice. The proportionality requirement in Article 18(1)(r) ensures refusals of the new residence status are not disproportionate where the Withdrawal Agreement otherwise grants rights, but it does not serve to confer status on persons who are not within the Agreement's categories. The interveners' argument about the first application being treated as an application under regulation 18 was not decided because that application was refused and was not appealed; the Court declined to admit further evidence. The appeal was dismissed.

This was an appellate decision. The appeal is dismissed. The Court held that Article 10(1)(e)(i) of the Withdrawal Agreement applies only to family members who were residing in the host State in accordance with Union law before the end of the transition period; a marriage after that date does not bring a person within Article 10(1)(e)(i). Articles 10(2) and (3) require an application under national law that results in the facilitation of residence (for example, by grant of a residence card) and cannot be satisfied simply by the availability of domestic legislation or guidance. Article 18(1)(r)'s proportionality safeguard does not create rights for persons who are not within the Agreement. The appellant therefore had no right under the Withdrawal Agreement and the Upper Tribunal's decision was correct.

First-tier Tribunal dismissed the appellant's appeal (decision dated 6 January 2022). The Upper Tribunal (Immigration and Asylum Chamber) dismissed the appeal [2022] UKUT 00220 (IAC). The appeal to the Court of Appeal was heard and dismissed in this judgment [2023] EWCA Civ 921.