High Court dismisses late EUSS application judicial review challenge

The High Court has handed down its judgment in R (Lin & Huang) v Secretary of State for the Home Department [2026] EWHC 457 (Admin) dismissing a challenge to the Secretary of State’s decision to refuse to allow the claimants to apply to the EU Settlement Scheme (‘EUSS’) after the deadline for their cohort had expired.

The claimants sought to apply to the EUSS as non-EEA national family members of a British citizen who, before the UK left the EU, had been able to enter and remain in the UK on the basis of Surinder Singh rights under EU law. However, they sought to apply to the EUSS after the 8 August 2023 deadline for applications for that cohort had passed, stating that they had not previously been aware of the need to make an EUSS application. The EUSS did not include any provision for late applications by this cohort to be considered and the Secretary of State duly refused to accept the application as valid.

It was argued that the refusal decision was contrary to the claimants’ rights under Article 8 of the Convention, read together with Article 14, on the basis that other EUSS applicants (specifically other Surinder Singh applicants who had been granted a permit to enter the UK to make an EUSS application) had been able to apply later than them. Considerable reliance was placed by the claimants on the fact that they had both been issued with residence cards under the Immigration (EEA) Regulations 2016 which had not expired until after they had made their EUSS application.

The High Court rejected the claimants’ arguments for two principal reasons:

• The Secretary of State’s decision to impose the hard 8 August 2023 deadline for the claimant’s cohort, as compared to the comparator group, was not discriminatory. The EUSS was not intended to be an open-ended scheme and the Secretary of State was entitled to impose a different deadline for potential applicants who were outside the UK and would face difficulties applying by the same deadline as those already in the country. Any interference with the claimants’ Convention rights was therefore justified and proportionate.

• The claimants had been able to apply to the EUSS for four years prior to the 8 August 2023 deadline in circumstances where the Secretary of State had taken significant steps to publicise the need for their cohort to make an application if they wished to stay in the UK after their EU law rights came to an end. They had no good reason for not applying sooner.

The judgment is also clear that, post-Brexit, individuals previously in the UK on the basis of EU law rights who can no longer apply to the EUSS (and thereby benefit from the rights and protections of the Withdrawal Agreement) cannot seek to argue based on those historic EU law rights that they should benefit from preferential treatment in immigration terms as compared to other non-EEA national family members of British citizens seeking to reside in the UK. The claimants’ unexpired EEA residence cards testified only to their having exercised historic EU law rights which had been brought to an end; they did not confer different continuing rights on the claimants by virtue of being unexpired.

The decision is significant for public law practitioners as an illustration of the application of Article 14 in the context of deadlines to apply for benefits conferred by the executive, including under the Immigration Rules. The Court also accepted the argument that the difference between the claimants’ cohort and the comparator group did amount to an ‘other status’ for Article 14 purposes, even though the difference was prima facie one of geographical location.

Katharine Elliot acted as sole counsel for the successful Secretary of State.