Presidential Panel of Upper Tribunal decides important cases on EU exit and Withdrawal Agreement

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The Upper Tribunal (Immigration and Asylum Chamber) has published two important new decisions today: Batool and Ors. (other family members: EU exit) [2022] UKUT 00219 (heard in March 2022) and Celik (EU exit, marriage, human rights) [2022] UKUT 00220 (heard in June 2022). In Celik, the appellant argued that he was unable to marry his EU partner before 11pm GMT on 31 December 2020 because of restrictions in place as a result of the Covid-19 pandemic, and as a result had been deprived of rights he should have been eligible for under the Withdrawal Agreement (“WA”). The UT rejected his appeal, holding that he could not invoke EU principles or the concept of proportionality in Article 18 of the WA to bring himself within scope of the WA. Tribunals could not rewrite the rules on scope, which had been designed to achieve legal certainty and an orderly withdrawal of the UK from the EU. The UT also rejected human rights, discrimination and other arguments. Batool concerned persons claiming to be extended family members (“EFMs”), but who had not made an application under the UK’s EFM domestic rules before 11pm GMT on 31 December 2020. Instead, they had made an application under the EU Settlement Scheme (“EUSS”), but they did not qualify under the EUSS. The UT decided that the appellants could not rely upon the EUSS application to bring themselves within scope of the WA. The UT also rejected arguments made in reliance on the EU Charter of Fundamental Rights and Article 8 ECHR. Julia Smyth represented the Secretary of State in both cases, instructed by the Government Legal Department.

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