Court of Appeal allows appeal on EU Settlement Scheme dependency rules

The Court of Appeal has said that a child, who is over 21 and has rights of residence based on dependency on their EU citizen parent, does not lose those rights if they start working and are no longer financially dependent on the parent. Essentially, dependency is determined at the date of application and once that has been established, the right to work takes precedence over the requirement for ongoing dependency. The case is R (Ali) v Secretary of State for the Home Department [2024] EWCA Civ 1546.

Background

The appellant was born in Bangladesh on 22 September 1994 and applied for an EEA family permit on 17 November 2014 as the direct family member of her mother, an Italian national with residence rights in the UK. An EEA family permit was issued and once in the UK the appellant applied for a residence card as the direct family member of her mother. A residence card was issued on 21 September 2015 valid until 21 September 2020, conditional upon the appellant remaining dependent on her mother from the age of 21.

The appellant applied under the EU Settlement Scheme as the relevant family member of an EEA national on 9 October 2019. At this date she had lived in the UK for five years but was no longer a child or dependent on her mother.

The appellant was married with a child, had an engineering qualification and was working. She was estranged from her family and unable to obtain some documentation relevant to her application and her solicitor said that the Home Secretary could verify her position from existing Home Office and HMRC records.

The application was refused on the grounds that the appellant did not meet the eligibility requirements because she was not dependent on her EEA citizen relative. The refusal was upheld on administrative and the judicial review was dismissed by the High Court.

The Court of Appeal

The single ground of appeal was that the High Court judge:

erred in his construction of the [Withdrawal Agreement and Citizens’ Rights Directive]. Contrary to the Judge’s view, the child of a Union citizen, who is aged over 21, does not lose the right to reside on account of exercising the right to work under Article 23 [CRD] and thereby ceasing to be financially dependent on the Union citizen.

It was argued on behalf of the appellant that the requirement for dependency for family members is subordinate to the right to work, which is a fundamental right that applies equally to family members. The Home Secretary’s position was that dependency was an unequivocal requirement that “must be met upon a continuing and enduring basis as a precondition of residence”.

The Independent Monitoring Authority intervened in the case in support of the appellant’s position, arguing that if the decision of the High Court was correct the judgment renders the right to work under the Withdrawal Agreement ineffective. This is because it traps the family member in a state of dependency which is against “the aim and objective of the legislative regime which includes the encouragement of work and integration”.

The Court of Appeal considered the relevant case law including on the concept of dependence and the point at which it is assessed and whether and to what extent it is a continuing or enduring requirement. Green LJ then summarised the relevant principles, including that free movement included the right to work, as reflected by the Withdrawal Agreement and the Citizens’ Rights Directive. Case law has also established that dependence is determined at the time the dependant applies to join the migrant EU citizen.

Green LJ also said that the Court of Justice of the European Union had set out the position that once a right of residence has been established it is not lost through the exercising of another right. The reasons for that were because of the procedural and evidential requirements for proving dependency, the application of the principle of equality between the EU citizen and their dependant, and the primacy of rights including the right to work in the Citizen’s Rights Directive.

Green LJ then considered the views of the European Commission, whose views the court said “should still carry some material weight”. Those views were that:

(i) once a child over 21 has a lawful right of residence the CRD applies in its entirety to the individual concerned which includes Article 23 on the right to work; (ii) it follows that a family member who has obtained a “right of residence or permanent residence” does not lose that right by exercising or seeking to exercise the right to work, even if this results in a cessation of dependency; and (iii), the legislative intention would be undermined and the right to work rendered ineffective if it was then to be defeated because the exercise of the entitlement led to a loss of a right to residence which in turn meant that the person in question could not work.

The commission’s view was therefore in line with the relevant case law.

LJ Underhill and LJ Singh disagreed with LJ Green’s reasoning, but agreed with the result on the basis that this is what the court said in Case C-423/12 Reyes v Migrationsverket EU:C:2014:16.

The Court of Appeal concluded that the High Court erred and allowed the appeal, quashing the Home Secretary’s decision. The court also considered that the conclusion reached was clear and did not warrant a referral to the Court of Justice of the European Union.

Conclusion

It is unclear how many people will be affected by this decision, but it will be good news for many. The Home Secretary is seeking permission to appeal to the Supreme Court, so this may not be the final word on this point.