Court decides important Withdrawal Agreement case on family member rights

The Administrative Court has handed down judgment in R (Ali) v Secretary of State for the Home Department [2023] EWHC 1615 (Admin).

The Claimant had come to the UK in December 2014, then aged 19, as a dependent family member of her mother. However, she then became estranged from her family and had lived independently from them since at least 2016. Her application to the EU Settlement Scheme (“EUSS”) in 2019 was rejected because she had by then ceased to be dependent on her mother.

The case therefore concerned the residence rights of adult children of EU citizens who are not themselves EU or British citizens (“third country nationals”). Under EU law, a child who is under 21 or over 21 but financially dependent on an EU citizen is a “family member” within the meaning of article 2 of Directive 2004/38/EC (“the Directive”). The key issue was whether the requirements in the EUSS correctly reflected the Withdrawal Agreement (“WA”).

The Claimant’s claim was dismissed. The Court accepted the Secretary of State’s submission that the Claimant could not draw any support from the decision of the CJEU in Reyes v Migrationsverket (C-423/12) [2014] QB 1140. The Secretary of State’s case was also “driven home” by the wording of Art. 14(2) of the Directive, which made clear that a family member needed to meet the conditions of the Directive on an ongoing basis: [66]. The Court also rejected the Claimant’s alternative submission that Art. 17(2) of the WA was a “relieving provision”, which brought within scope of the WA family members who would not otherwise qualify, concluding that only family members residing in accordance with EU law at the end of the transition period could rely on it.

David Blundell KC and Julia Smyth represented the Secretary of State.

The judgment may be accessed here.