The Secretary of State for the Home Department v Have Rexhaj
[2024] EWCA Civ 784
Fatima Ali, R (on the application of) v Secretary of State for the Home Department
30 June 2023
[2023] EWHC 1615 (Admin)
High Court
Fatima, a child of an EU citizen, lost her right to stay in the UK because she was no longer financially dependent on her mother after turning 21. A court case arguing this was unfair failed because the rules followed EU law and the agreement leaving the EU.
Key Facts
- •Fatima Ali, a Bangladeshi citizen, entered the UK in 2014 as a family member (child under 21) of her EEA national mother.
- •She became estranged from her mother in 2016 and lived independently.
- •Her application for pre-settled status/limited leave to remain under the EU Settlement Scheme (EUSS) was refused because she was not dependent on her mother at the time of the decision (being over 21).
- •The claim for judicial review challenged the legality of the immigration rules requiring continued dependency for those over 21.
Legal Principles
Definition of 'family member' under EU Directive 2004/38/EC.
Directive 2004/38/EC, Article 2
Interpretation of the Withdrawal Agreement in conformity with CJEU case law.
Withdrawal Agreement, Article 4(4) and (5)
Residence rights of family members under the Withdrawal Agreement.
Withdrawal Agreement, Article 13
CJEU case law on dependency of family members over 21 (Reyes v Migrationsverket).
Reyes v Migrationsverket (C-423/12)
Retention of residence rights under Directive 2004/38/EC, Articles 7(2) and 14(2).
Directive 2004/38/EC, Articles 7(2), 14(2)
Right to employment for family members with residence rights (Directive 2004/38/EC, Article 23).
Directive 2004/38/EC, Article 23
Principles of treaty interpretation under the Vienna Convention on the Law of Treaties.
Vienna Convention on the Law of Treaties, Article 31(1)
Wednesbury unreasonableness review.
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Outcomes
Application for judicial review dismissed.
The court found that the immigration rules correctly reflected the Withdrawal Agreement and that continued dependency was a requirement under EU law for family members over 21 whose status depended on it. The CJEU case law in Reyes did not support the claimant's argument that dependency only needed to exist at the time of joining the EU citizen. The court rejected the claimant's alternative argument that Article 17(2) of the Withdrawal Agreement created a new right.