No reprieve for durable partners prevented from marrying due to COVID-19

Many predicted that the heady mix of Brexit and COVID-19 would result in litigation, and so it has come to pass. Ending EU free movement law in the middle of a global pandemic – when people faced difficulty travelling, marrying, and getting advice from an immigration lawyer – was bound to cause problems.

For Mr Celik, a Turkish national living in the UK, the problem he faced was an inability to marry his Romanian partner before 31 December 2020.

In Celik (EU exit; marriage; human rights) [2022] UKUT 00220 (IAC) the Upper Tribunal has decided that he — and anyone else in a similar situation — cannot benefit from the EU Settlement Scheme.

Unmarried couples did not have automatic rights under EU free movement law in the same way that direct family members, such as spouses, did. This meant that they had to apply for a residence document under the Immigration (EEA) Regulations 2016 or marry before 31 December 2020 – when EU law ceased to apply in the UK.

COVID-19 preventing marriages

One of the ways for a durable partner to obtain a right to reside under EU free movement law was to marry.

Many charity organisations have highlighted the problems the COVID-19 pandemic caused for couples wanting to marry before 31 December 2020. The Home Office was urged to provide a concession for those whose marriages had been scheduled prior to Brexit but were postponed due to the pandemic.  However, in a letter issued in February 2022, the Minister of Immigration indicated that, as people could still apply for a document as a durable partner, there was no need for a concession.

In Celik the appellant attempted to challenge this decision. The Upper Tribunal did not accept that a concession was necessary:

“…any such public law challenge is rendered hopeless by the fact that (as the present case illustrates) those who marry are highly likely to regard themselves as being in a durable relationship. Accordingly, a person in the position of the appellant could and should have applied to the respondent for facilitation (and, thus, recognition) of their position as an extended family member. The fact that marriage makes the non-EU citizen the possessor of an underlying right, whereas being in a durable relationship with such a person does not automatically do so, is insufficient to demonstrate that the respondent committed a public law error in not providing some form of concession for those whose weddings were likely to have taken place before 31 December 2020, but for Covid-19.”

This rather ignores the fact that COVID-19 may have also prevented many from making applications for facilitation under the Immigration (EEA) Regulations 2016. Perhaps that will be the subject of future litigation.

An unsupported assertion that it was not possible to make an application is unlikely to be accepted by the Tribunal. However, someone who can demonstrate that they were unable to apply in time due to unnecessary administrative burdens caused by the COVID-19 pandemic may be able to demonstrate that refusal is disproportionate.