Here For Good, R (on the application of) v The Secretary of State for the Home Department

Article 18 of the Withdrawal Agreement permits a two-stage process for late applications under a residence scheme. The competent authority may first decide whether there are reasonable grounds for missing the deadline. Until permission to apply late is granted, there is no application for residence status and the procedural safeguards in Article 18(1)(r), Article 18(3) and Article 21 are not engaged.

The EU Charter does not apply to a person who has neither applied for nor obtained residence status under Article 18. Judicial review can, in principle, provide an adequate remedy where the applicable legal standard requires scrutiny of the factual basis, reasons, procedural safeguards and evaluative judgment. A full merits appeal is not necessarily required.

The claimant, a charity supporting EU, EEA and Swiss citizens and their family members, challenged changes made to Appendix EU on 9 August 2023. The changes treated the requirement for reasonable grounds for a late application as a preliminary validity issue and provided no merits appeal against refusal to accept the late application.

The claimant argued that this breached Articles 18(1)(d) and (r), Article 21 and Article 4(3) of the Withdrawal Agreement, and Article 47 of the EU Charter. The central issues were whether the Agreement required merits-based redress against refusal to permit a late application, whether such refusal restricted residence rights, and whether the Charter applied.

1. Ground 1 dismissed. Article 18(1)(d) contemplates a preliminary assessment of whether reasonable grounds exist for missing the application deadline. Only if that assessment succeeds can the application be accepted for consideration of entitlement to the new residence status.
2. At the preliminary stage there is no application for residence status and no applicant for the purposes of Article 18(1)(r). Its procedural safeguards therefore do not apply to a refusal to permit a late application. The distinction between validity and eligibility in Appendix EU accurately reflects the two stages contemplated by Article 18, even though those expressions do not appear in the Agreement.
3. Ground 2 dismissed. Article 18(3) is predicated on an application being before the competent authority. Article 21, which applies safeguards to decisions restricting residence rights, cannot apply to the pre-application question whether reasonable grounds exist for applying late. The scheme creates new residence status rather than continuing pre-existing residence rights.
4. Ground 3 dismissed. The cases concerning persons who had timely applied for and obtained pre-settled status did not govern a person seeking permission to make a late application. No element of EU law was engaged in the circumstances considered, so Article 4(3) did not bring Article 47 of the Charter into play.
5. Alternatively, if Article 18(1)(r) or Article 47 applied, EU law would not require a tribunal to substitute its own merits decision. Judicial review could examine the factual basis, reasons, procedural safeguards, relevant factors and evaluative judgment. Its flexible procedure could, where justified, include factual inquiry or cross-examination.
6. Each ground of the judicial review was dismissed.