Fatima Ali, R (on the application of) v Secretary of State for the Home Department

A third-country national adult child who qualifies as a family member because of dependency must continue to satisfy the relevant conditions for residence. Reyes concerned the conditions for acquiring residence and did not establish that dependency need exist only when residence is first obtained. Article 23 of Directive 2004/38/EC does not create a general exception where employment ends dependency. Article 14(2) requires family members to meet the applicable conditions on an ongoing basis. Article 17(2) of the Withdrawal Agreement protects qualifying dependants who were lawfully resident at the end of the transition period, but does not confer rights on persons whose lawful residence had already ceased. Different outcomes under the EU Settlement Scheme and earlier EEA regulations were not irrational because they arose under distinct legal regimes.

The claimant, a Bangladeshi national, entered the United Kingdom in 2014 as the family member of her EEA-national mother, being under 21. She later became estranged from her mother, married, lived independently and was no longer financially dependent. Her application for pre-settled status under the EU Settlement Scheme was refused because she was over 21 and dependent on her mother was not established.

She sought judicial review, arguing that the Withdrawal Agreement, properly construed in light of Reyes v Migrationsverket (C-423/12) [2014] QB 1140, required dependency only when residence was initially obtained. Alternatively, she argued that article 17(2) of the Withdrawal Agreement preserved residence rights after dependency ceased. She also alleged irrational unequal treatment compared with persons initially granted leave under the EU Settlement Scheme.

1. The claim was dismissed. The claimant had never been a dependant aged 21 or over and had not shown that refusal of status affected the exercise of her mother’s EU rights.
2. Reyes did not establish a continuing right after dependency ceased. The questions in Reyes concerned whether employment prospects or the ability to obtain other support were relevant to determining dependency for initial entry or residence. The judgment did not decide whether dependency had to continue after residence was obtained. The Advocate General’s opinion had limited weight and could not materially alter the CJEU’s judgment (paras [56]-[60]).
3. Article 23 of Directive 2004/38/EC did not create a general employment exception. It permits employment by family members with residence rights, but does not expressly displace the ordinary requirement that a person whose status depends on dependency must remain dependent. Article 14(2), read with article 2(2)(c), requires the conditions for residence to continue to be met. Permanent residence is different because article 16(1) removes the Chapter III conditions (paras [61]-[66]).
4. Other authorities did not assist the claimant. Rahman concerned “other family members” under article 3(2), not family members within article 2(2). Singh illustrated the consequences of losing a derived right before divorce. Articles 20 and 21 were administrative provisions and did not remove the separate requirement of five years’ continuous lawful residence (paras [67]-[78]).
5. Article 17(2) of the Withdrawal Agreement was not a relieving provision. Read with articles 6(1), 10(1)(e)(i), 17(1), 39 and 185, it protects persons who were residing lawfully in accordance with Union law on the last day of the transition period and continued to reside thereafter. It prevents loss of Withdrawal Agreement rights solely because dependency later ceased, but does not regularise residence that had already become unlawful (paras [80]-[96]).
6. The irrationality challenge failed. The EU Settlement Scheme and the Immigration (European Economic Area) Regulations 2016 were distinct legal regimes. Their different consequences had a valid basis in the different legal routes initially used, and the difference was not Wednesbury unreasonable (paras [97]-[107]).