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

Where an adult child has acquired a derived right of residence as a dependent family member, exercising the right to work under Article 23 of the Citizens’ Rights Directive does not cause loss of residence merely because the child becomes financially independent. Dependency for the initial right is assessed when the person applies to join the EU citizen. The right to work must be given effective content, and domestic immigration rules must yield so far as inconsistent with the Withdrawal Agreement and incorporated EU law.

The appellant entered the United Kingdom in 2014 as the dependent adult child of an Italian national. She later obtained a residence card and worked in the United Kingdom. In 2019 she applied under the EU Settlement Scheme after five years’ residence. The application was refused because she was then over 21 and no longer dependent on her mother. The High Court upheld that approach: [2023] EWHC 1615 (Admin). The appeal concerned whether dependency was a continuing condition and whether employment could cause loss of residence. A further issue was whether the appellant’s loss of dependency resulted from estrangement rather than work.

1. Appeal allowed. The Secretary of State’s decision was quashed and the appellant’s application was required to be redetermined.
2. The Withdrawal Agreement and the Citizens’ Rights Directive had to be interpreted in accordance with applicable EU-law principles and pre-transition CJEU jurisprudence. Rights under the Withdrawal Agreement had direct effect and priority over inconsistent domestic law. Appendix EU could not impose a condition inconsistent with those rights.
3. Dependency is an autonomous concept. For the initial acquisition of a derived right of residence, it is assessed by reference to the factual position when the family member applies to join the EU citizen. The court rejected the High Court’s approach of measuring dependency at the later application for permanent residence.
4. Underhill LJ, with whom Singh LJ agreed, treated Reyes as authoritative. Article 23 of the Directive qualifies the continuing-dependency requirement: an adult child who has a right of residence does not lose it by exercising the right to work, even where employment makes the child financially independent. Green LJ reached the same operative conclusion and considered the protection broader, but that wider gateway analysis was not the common basis necessary for the result.
5. The Secretary of State’s causation argument failed. Residence before age 21 was unconditional. The relevant question after age 21 was whether the appellant had exercised Article 23 rights before turning 21 and continued to do so. The court did not finally determine whether employment had to produce financial independence, since that case had not properly been advanced.
6. The Article 24 equal-treatment argument was raised too late and was left undecided. A reference to the CJEU under Article 158 of the Withdrawal Agreement was unnecessary because the decisive point was sufficiently clear.

• Court of Appeal (Civil Division): Allowed the appeal, quashed the Secretary of State’s decision and required redetermination.
• High Court, King’s Bench Division: Upheld the Secretary of State’s view that dependency was continuing and had to be satisfied when permanent residence was sought: [2023] EWHC 1615 (Admin).