Ali, R (On the Application Of) v Secretary of State for the Home Department

Factual and Procedural Background

This opinion concerns an appeal arising from a decision refusing an application for indefinite leave to remain under Appendix EU to the Immigration Rules, relating to the residence rights of a third-country national adult child of an EU citizen under the Withdrawal Agreement ("WA") and the Citizens' Rights Directive ("CRD"). The appellant applied initially as a dependent child under 21 to join her EU citizen mother residing in the UK. At the time of her application for permanent residence, she was over 21 and no longer financially dependent on her mother, having married and become estranged from her family, and was employed. The Secretary of State for the Home Department ("SSHD") refused the application on the basis that the appellant did not satisfy the continuing dependency requirement for adult children under the CRD and WA. The appellant challenged this refusal, contending that exercising the right to work under Article 23 CRD does not negate the right of residence. The High Court upheld the SSHD's decision, holding that dependency must be continuous and measured at the date of the permanent residence application. The appellant appealed this decision.

Legal Issues Presented

1. Whether the dependency requirement for adult children over 21 under the WA and CRD is a continuing condition that must be satisfied at the time of the application for permanent residence, such that ceasing to be dependent (for example, by taking up employment) results in loss of residence rights.
2. Whether exercising the right to work under Article 23 CRD affects the dependency status and thereby the entitlement to residence rights.
3. Whether the administrative and domestic law provisions requiring continuous dependency are consistent with the WA and CRD, including the principle of equality and fundamental rights.
4. Whether a reference to the Court of Justice of the European Union ("CJEU") is warranted to clarify the interpretation of the WA and CRD in this context.

Arguments of the Parties

Appellant's Arguments

• The rights to free movement, residence, and work under the WA and CRD are fundamental and must be broadly and purposively construed.
• The dependency requirement is a gateway condition measured at the time of initial application to join the EU citizen and does not endure continuously thereafter.
• Exercising the right to work under Article 23 CRD does not negate the right of residence, and a narrow interpretation undermining this right is unlawful and inconsistent with EU law and the WA.
• Domestic law provisions requiring continuous dependency are inconsistent with the WA and should be disapplied under Article 4 WA.
• If there is doubt or disagreement on interpretation, a reference to the CJEU should be made to avoid legal uncertainty and ensure uniform application across the UK and EU.

Respondent's Arguments (SSHD)

• The dependency requirement for adult children over 21 is an unequivocal, continuing condition that must be met at the date of the permanent residence application.
• The appellant’s rights are derivative and subordinate to the primary rights of EU and UK citizens; it is legitimate for derivative rights to be limited by dependency.
• The domestic administrative position and Immigration Rules correctly reflect the WA and CRD.
• The case law cited by the appellant concerns different factual and legal contexts and does not undermine the continuing dependency requirement.
• The European Commission's views carry no greater weight than that of the UK government, which was an equal negotiating party to the WA.
• There is no need for a reference to the CJEU as the law is clear and the High Court's decision was correct.

Independent Monitoring Authority's (IMA) Arguments

• The IMA supports the appellant’s position that dependency is not a continuing requirement and that the right to work should not be undermined by a continuous dependency condition.
• The judgment below renders the right to work ineffective by trapping dependent family members in dependency, contrary to the legislative aim of encouraging integration and work.
• There is legal uncertainty and practical difficulties arising from the continuing dependency requirement.
• The IMA considers the case law, European Commission guidance, and academic commentary consistent with the appellant’s interpretation.
• In case of uncertainty, the Court should consider making a reference to the CJEU for clarification.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court undertook a detailed analysis of the relevant provisions of the Withdrawal Agreement (WA), the Citizens' Rights Directive (CRD), and their incorporation into domestic law via section 7A of the European Union (Withdrawal) Act 2018. The Court examined the administrative decision and the High Court judgment, which held that dependency must be continuous and measured at the date of the permanent residence application, rejecting the appellant’s claim that exercising the right to work did not negate dependency.

The Court reviewed the jurisprudence of the Court of Justice of the European Union (CJEU), focusing on key cases addressing the definition and timing of dependency assessment (Lebon, Jia, Rahman, Reyes, Ogieriakhi, GV, CG). The Court found that the CJEU consistently held that dependency is to be assessed at the time of application to join the EU citizen and that once residence rights are acquired, they are not lost by subsequent changes in dependency status, including taking up employment under Article 23 CRD. The Court emphasized the principle of equality, noting that denying residence rights upon exercising the right to work would create inequality between migrant family members and nationals.

The Court also considered the European Commission’s consistent position that exercising the right to work does not lead to loss of residence rights for dependent family members. Although the Commission’s guidance is not binding, the Court accorded it persuasive weight given its role as guardian of EU law and its endorsement by the CJEU.

Academic commentary cited by the Independent Monitoring Authority (IMA) supported the interpretation that dependency is a gateway condition measured at application, not a continuing requirement, and that the right to work cannot be undermined by a continuing dependency condition.

The Court found that the High Court erred in applying a continuing dependency test and in construing Article 23 CRD as limited to employment that does not end dependency. The Court rejected the argument that derivative rights are subordinate to the extent that they can be lost by exercising fundamental rights like the right to work. The Court recognized that the right to work is a fundamental component of the free movement rights preserved in the WA and CRD.

Regarding the causation issue, the Court analyzed whether the appellant’s loss of dependency resulted from exercising the right to work or from other factors such as estrangement. The Court concluded that the appellant was exercising her right to work prior to turning 21 and that this sufficed to preserve her residence rights under the Reyes principle. The Court declined to adopt a financial independence test beyond the exercise of the right to work.

Finally, the Court considered whether a reference to the CJEU was necessary. Given the clarity and consistency of the CJEU jurisprudence and the Commission’s position, the Court concluded no reference was warranted.

Holding and Implications

The Court allowed the appeal. It held that the requirement of dependency for adult children under the WA and CRD is to be assessed at the time of the initial application to join the EU citizen and is not a continuing condition that must be satisfied at the date of the permanent residence application.

The Court ruled that exercising the right to work under Article 23 CRD does not negate residence rights derived from dependency. The High Court's decision and the SSHD’s administrative decision were quashed, and the appellant’s application was to be redetermined in accordance with this judgment.

The decision clarifies that domestic law provisions requiring continuous dependency are inconsistent with the WA and CRD and must be disapplied. It reinforces the primacy of fundamental free movement rights and equality principles in interpreting residence rights of family members.

No new precedent was set beyond affirming established CJEU jurisprudence and the Commission’s position. The Court declined to make a reference to the CJEU, finding the law sufficiently clear.