Bingyan Lin & Anor, R (on the application of) v The Secretary of State for the Home Department

An EEA residence card is declaratory. It evidences an existing right of residence but does not create or extend that right beyond the period for which the underlying statutory or EU-law right exists.

Following Brexit, persons whose residence depended on the Surinder Singh principle lost those rights when the relevant EU-law framework ceased to apply, subject to the statutory grace period. A transitional immigration route may be closed where the closure pursues equal treatment and is proportionate, even if no provision is made for late applications based on reasonable grounds.

For Article 14 purposes, immigration status and residence or presence in the United Kingdom may constitute “other status”. Different treatment of persons in analogous situations is lawful where it is objectively justified and proportionate.

The claimants, Chinese nationals and family members of a qualifying British citizen, had lived in the United Kingdom under the Surinder Singh principle and held EEA residence cards issued under the Immigration (European Economic Area) Regulations 2016. They applied under the European Union Settlement Scheme after the route for family members of qualifying British citizens had closed on 8 August 2023.

The Secretary of State refused to consider the applications because they were made after the cut-off date and used the wrong form. The claimants challenged the decisions on grounds including Article 14 read with Article 8 ECHR, unfair or unequal treatment, unreasonableness and irrationality. They also renewed permission on the issue whether their residence cards remained evidence of lawful residence after 30 June 2021.

1. Ground 3. The renewed application for permission was refused. Residence cards under regulation 18 of the Immigration (European Economic Area) Regulations 2016 were declaratory of existing rights. Regulation 18(6) concerned the period of validity of the document, while regulation 18(7) made its evidential validity dependent on the holder continuing to have a right to reside under the Regulations. The claimants’ EU-law rights ended when the Regulations were revoked, and their domestic-law protection under the Application Regulations ended on 30 June 2021. Their cards therefore did not confer residence rights until the printed expiry dates.
2. Ground 1. The court accepted, for present purposes, that the complaint fell within Article 8. The claimants and the comparator group were in analogous situations and had been treated less favourably on grounds constituting “other status”. The difference was not merely geographical. However, closing the FMQBC route pursued the legitimate aim of placing affected family members on the same footing as other family members of British citizens. The measure was rationally connected to that aim, and applying the cut-off date was proportionate. The comparator group had been abroad, had engaged with the Scheme through the family-permit process and required limited additional time to relocate.
3. Grounds 2, 4 and 5. It was lawful and proportionate to end the more favourable transitional treatment after a substantial period during which applications could be made. The absence of a reasonable-grounds extension did not make the decisions unreasonable or irrational. The requirement for paper applications added nothing because the route had closed. The decisions did not retrospectively disregard established residence rights; rather, the claimants had failed to regularise their status while the Scheme remained open.
4. The claim was dismissed. Grounds 1, 2, 4 and 5 were dismissed, and permission on Ground 3 was refused.