Bingyan Lin & Anor, R (on the application of) v The Secretary of State for the Home Department

I had doubts about whether it was necessary to determine Ground 3 and I raised this question with Mr de Mello at the beginning of the hearing. The Claim Form clearly challenges the Defendant’s refusals to consider the Claimants’ applications under the EUSS, which were on two grounds – use of the wrong application form and the closure of the EUSS to applicants in the Claimants’ position in any event. The Defendant’s decisions were not based on the merits of their applications and she did not plead, for example, that in any event the applications would have been rejected because the Claimants did not have the requisite period of lawful residence in this country. It is the case that in the pre action correspondence the Home Office said, in a letter of 24 October 2024, that the Claimants’ residence cards had ceased to be valid evidence of lawful residence on 30 June 2021, but this was not a “decision” as such. I was also concerned that what I said in a judgment on this Ground might lead to complications in relation to future applications to regularise their immigration position which the Claimants might make.

However, Mr de Mello and Mr Nicholson had devoted half of their skeleton argument to Ground 3. Mr de Mello maintained until the end of the hearing, at which point he was disposed to agree that there was no need for me to decide the issue, that Ground 3 was important in itself and to the analysis of the other Grounds of challenge. He also spent more than half of his oral submissions on this Ground and, indeed, introduced supplementary materials relating to biometrics to support a new argument which he ran under Ground 3 (albeit his arguments based on biometrics were withdrawn in a post hearing Note dated 3 February 2026). The point was therefore fully argued notwithstanding Ms Elliot’s position, at the end of her submissions, that it was not necessary for me to decide it.

I doubt that, on analysis, the aspects of Mr de Mello’s other Grounds of challenge which are based on his contention that the Claimants’ EEA residence cards conferred rights of residence on them for a period of 5 years affect the outcome on those Grounds. However, on reflection, I have concluded that I should reach a decision on Ground 3 given the way in which Mr de Mello puts the other Grounds.

Mr de Mello acknowledged that “EU case law establishes that residence cards are declaratory of EU law rights and that the declaratory character of residence permits means that those permits merely certify that a right already exists…” (see [8] of his skeleton argument). It is indeed the position that a residence card declared rights which existed independently of the card being issued, rather than creating or conferring rights of residence: see e.g. O v Minister voor Immigratie, Integratie en Asiel (Case C-456/12) [2014] QB 1163 at [60], applied in Kaur v Secretary of State for the Home Department [2020] EWCA Civ 98 at [63].

Moreover, regulation 18 of the 2016 Regulations, which provided for the issuing of residence cards to non-EEA national FMQBCs with rights of residence, including under regulation 9, reflected this position. Regulations 18(6) and (7) provided that:

“(6)

A residence card issued under this regulation is valid for—

(a)five years from the date of issue;…...

(7)

A residence card—

(a)…;

(b)is proof of the holder’s right to reside on the date of issue;

(c)is no longer valid if the holder ceases to have a right to reside under these Regulations;

(d)is invalid if the holder never had a right to reside under these Regulations.”

As noted above, the Claimants ceased to have rights to reside in this country under EU law when EU law ceased to apply, and the 2016 Regulations were revoked, on 31 December 2020. They then had rights to reside under domestic law during the grace period, as if they retained their EU law rights, by virtue of the Application Regulations. However, on 30 June 2021 they lost their rights to reside on the Surinder Singh/regulation 9 basis. In my view the fact that the Claimants’ residence cards stated that they were valid until June 2024/January 2025 respectively was a function of regulation 18(6) of the 2016 Regulations. It follows from the caselaw and the terms of Regulation 18 that their residence cards did not confer any rights of residence on them which they did not have under EU or domestic law. The cards remained valid for the purposes of proving that they had rights of residence on the date of issue, and they had rights of residence until the end of the grace period, but it was incumbent on them to apply to the EUSS or take other steps to regularise their immigration status.

Mr de Mello nevertheless put forward a range of arguments in writing and orally to the effect that possession of an EEA residence card which was stated to be valid until a date after 30 June 2021 did give rise to continuing rights of residence in circumstances where the card holder continued to reside in this country. He argued, amongst other things, that:

Mr de Mello also relied on Ahmad (supra) where the Court of Appeal held that the 2016 Regulations applied to the determination of an application by a Zambrano carer which had been made during the Transitional period but was outstanding at the end of that period. His argument was that the position of the Claimants was a fortiori given that they already had residence cards and had been resident in this country for some time.

Mr de Mello also relied on section 16 of the Interpretation Act 1978 and submitted that there was no “contrary intention” expressed by the statutory provisions which I have summarised above. Section 16 provides, so far as material:

“General savings.

(1)Without prejudice to section 15, where an Act repeals an enactment, the repeal does not, unless the contrary intention appears,—

…

(c)affect any right, privilege, obligation or liability acquired, accrued or incurred under that enactment;…”

Mr de Mello also asserted that the Claimants had a legitimate expectation that their residence cards were valid for 5 years and had no reason to believe that they would cease to apply, or to have effect, before the stated expiry date. The Immigration Rules may not retrospectively disregard vested rights or previous lawful residence.

In his oral submissions, Mr de Mello principally relied on the arguments at [41(iii)], [42] and [43] above, together with the new argument based on the regulations relating to biometric data which he withdrew after the hearing.

With respect, many of Mr de Mello’s arguments assumed what they needed to prove and/or had a circular quality. They did not engage with the reality that, even under EU law, the Claimants’ EEA residence cards were declaratory evidence of existing rights rather than themselves conferring rights. Moreover, Regulations 18(7)(b)-(d) of the 2016 Regulations underline the point that the continuing validity of the Claimants’ residence cards to prove rights of residence was contingent on the continuing existence of their underlying rights to reside under the 2016 Regulations. Mr de Mello did not address regulations 18(7)(b) and (d), which were clearly inconsistent with his argument, and I reject his proposed interpretation of regulation 18(7)(c). The phrase “ceases to have a right to reside under these Regulations”, particularly when read with the rest of regulation 18(7), means what it says, rather than “ceases to have a right to reside pursuant to the Regulations” as Mr de Mello in effect argued. The fact that the 2016 Regulations were revoked meant that the Claimants ceased to have rights to reside under those Regulations and their cards ceased to be valid for the purposes of proving such rights beyond 30 June 2021.

Ahmad was dealing with an entirely different question to the present: the basis on which pending applications would be determined after the end of the Transitional period. The Claimants did not have outstanding applications at the end of the Transitional period and this question has no bearing on their case.

As for the argument under section 16 of the Interpretation Act 1978, rights under EU law and regulation 9 very clearly were intended to be affected by the Brexit legislation and in the way which I have summarised above (see, also, [23] Ahmad, cited at [19] above): “the contrary intention” is therefore apparent from this legislation. And, in any event, the fact that the Claimants’ EEA residence cards were stated to be valid for 5 years has no bearing on this point given that the underlying argument is that the Brexit legislation did not remove the Claimants’ Surinder Singh rights.

Although Mr de Mello did not develop his argument on legitimate expectation in his oral submissions, this argument assumes what it needs to prove. The statement on each EEA residence card that it was valid for 5 years (as required by regulation 18(6)(a) of the 2016 Regulations) did not promise the Claimants, or confer, rights of residence for the reasons which I have explained. Regulation 18(7) made this clear. There was no promise to go beyond the position in law.

I therefore consider that Mr Douglas-Jones was right to refuse permission on Ground 3 and for the reasons which he gave. The Claimants’ renewed application for permission in relation to this Ground is refused.

Article 14 ECHR provides that:

The authorities confirm that in applying Article 14 the court should consider four questions. Although the order and formulation of these questions is not always identically expressed, I will adopt the following formulation by Lady Carr CJ in R (AB) v Secretary of State for the Home Department [2024] EWCA Civ 369 at [39]:

“(1)

Does the subject matter of the complaint fall within the ambit of one of the substantive Convention rights?

(2)

Does the ground upon which the complainant has been treated differently from others constitute a "status"?

(3)

Has the complainant been treated differently from other people not sharing that status who are similarly situated or, alternatively, have they been treated in the same way as other people not sharing that status whose situation is relevantly different from theirs?

(4)

Does that difference or similarity in treatment have an objective and reasonable justification, in other words, does it pursue a legitimate aim and do the means employed bear a reasonable relationship of proportionality to the aims sought to be realised?”

Ms Elliot invited me to assume, for present purposes only, that the subject matter of the Claimants’ complaints falls within Article 8 ECHR and I am content to do so. The issues between the parties therefore related to Questions 2-4 above.

As far as the issue of proportionality is concerned, there did not appear to be any disagreement between the parties that I should apply the well known test formulated by Lord Reed JSC in Bank Mellat v HM Treasury (No 2) [2013] UKSC 39, [2014] AC 700 at [74]:

“is necessary to determine (1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right, (2) whether the measure is rationally connected to the objective, (3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and (4) whether, balancing the severity of the measure's effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter.”

Ms Elliot also relied on Lord Reed’s judgment in R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26, [2022] AC 223 at [115], [143]-[156] and [157]-[162] to submit that where, as here, the ground for differentiation is not a so called “suspect ground” (i.e. one which is based on a personal characteristic such as race or sex) the courts will generally subject the decision or measure to a less exacting level of scrutiny and require less weighty reasons to justify it. Moreover, in the field of social and economic policy the courts will accord appropriate respect to the choices made by the Government and Parliament given their respective constitutional roles and areas of expertise, and they will be careful not to interfere unduly in the sphere of political choices. As Lord Reed put it at [161]:

“…The ordinary approach to proportionality gives appropriate weight to the judgment of the primary decision-maker: a degree of weight which will normally be substantial in fields such as economic and social policy, national security, penal policy, and matters raising sensitive moral or ethical issues. It follows…..that [although this is not the test] the ordinary approach to proportionality will accord the same margin to the decision-maker as the “manifestly without reasonable foundation” formulation in circumstances where a particularly wide margin is appropriate.”

The Claimants’ pleaded case was that for the purposes of comparison they were non-EU citizens who were family members of a qualifying British citizen who were in the United Kingdom having exercised Surinder Singh free movement rights, had had rights of residence here under regulation 9 of the 2016 Regulations and were resident here at all material times. For this category of person there was no obstacle to their applying under the EUSS as FMQBCs provided they did so by 8 August 2023. But, if they did not apply by this date, the EUSS was closed to them.

The Claimants’ pleaded comparator group is non-EU national family members of a qualifying British citizen who were not in the United Kingdom, who were not entitled to apply under the EUSS from outside the United Kingdom and who therefore required a EUSS family permit under the Immigration Rules Appendix EU (Family Permit) to enter the United Kingdom if they were to make an application under the EUSS. In the case of the comparator group, to obtain a EUSS family permit the qualifying British citizen and their family members needed to have returned to the United Kingdom by 11pm on 29 March 2022. This deadline could, however, be extended if the entry clearance officer was satisfied that there were reasonable grounds for the person’s failure to meet it. Examples of reasonable grounds given in the relevant guidance to caseworkers were employment or study abroad, a serious medical condition or significant medical treatment, or other compelling practical or compassionate reasons. Provided a (six month) EUSS family permit had been applied for by 8 August 2023, an application under the EUSS could be made before the expiry of the leave to enter granted to them upon their arrival in the United Kingdom with that entry clearance, or later if there were reasonable grounds for the delay in making the application.

Mr de Mello argued that the circumstances of the Claimants’ group and the comparator group were so similar as to call for a justification of the difference in their treatment: see R (Carson) v Secretary of State for Work and Pensions [2005] UKHL 37, [2006] AC 173 at [30]-[31]. In any event, the groups were in analogous situations and the Claimants’ group (who, contrary to my ruling on Ground 3, he said were people applying for ILR before the expiry of their leave) had been treated less favourably on the grounds of “other status” for the purposes of Article 14 i.e. “those who like the Claimants have lawful residence in the UK under the EEA Regulations and would have qualified for ILR after five years lawful residence”. He relied on Bah v United Kingdom (2011) 54 EHRR 21 at [46].

Again contrary to my ruling on Ground 3, Mr de Mello’s submission was that the Claimants’ group were required to “re-apply for variation of leave before 9 August 2023 even though they have extant leave to remain beyond that date” on the basis of their EEA residence cards, and there is no scope for an extension of time. “Those in this group do not qualify for ILR after five years of lawful residence unlike the comparator group residing in the UK seeking ILR”. In the alternative, the Claimants should have been treated in the same way as others who had lawfully resided in the United Kingdom so far as eligibility for ILR/settled status was concerned. The failure to make similar arrangements for both groups was contrary to Article 14: see Thlimmenos v Greece (2001) EHRR 15 at [44].

Mr de Mello went on to submit that there was no justification for the Defendant’s approach. There was no rational connection to the objectives which were sought to be served. There was a less intrusive measure available, namely to allow the Claimants to apply for settled status after five years’ residence on the basis that they had valid EEA residence cards during the relevant period. The measures in question struck an unfair balance in that its effect was that the Claimants’ period of residence in the United Kingdom beyond 30 June 2021 was disregarded for the purposes of deciding the issue of settlement.

Ms Elliot submitted that the difference in treatment between the Claimants and the comparator group was not on the grounds of “other status”. The main difference between the two was “locational” in that the Claimants were in the United Kingdom at all material times whereas the comparator group were not, and had been obliged to obtain a EUSS family permit to enter the country in order to apply under the EUSS. Her submission was that the European Court of Human Rights (“ECtHR”) has been clear that differences based on geographical location are not sufficient to amount to a personal characteristic which amounts to “other status”: see Magee v United Kingdom (Application no 28135/95) at [50] which she noted was cited by the ECtHR in Carson v United Kingdom (2010) 13 EHRR 13. Moreover, the present case is one in which the complaint was about the conferring of a procedural benefit on one category of people but not another, and this does not give rise to an “other status”: see Steer v Stormsure Ltd [2021] EWCA Civ 887. “Other status” cannot be defined by the treatment complained of: it must be possible to identify a ground for the difference in treatment in terms of a characteristic which is not merely a description of the treatment itself.

In her skeleton argument Ms Elliot accepted that the Claimants and the comparator group were treated differently and she did not dispute that the two were in analogous situations. In her oral submissions, however, she argued on the basis of Stormsure (supra) that there had not been less favourable treatment of the Claimants if one looked at matters in the round. But it seemed to me that Stormsure was a very different case and, when I tested her argument, she appeared to accept that it was flawed. In the present case there did not appear to me to be difficulty in identifying different and less favourable treatment for reasons which I will explain.

Ms Elliot submitted, however, that in any event the difference in treatment between the Claimants and the comparator group was objectively justified.

Counsel did not appear to disagree with my suggestion that, for the purposes of deciding whether there was less favourable treatment, one could posit a person in the Claimants’ cohort who applied for pre settled or settled status under the EUSS on 9 August 2023, and a person in the comparator group who did the same. Assuming that both were in the United Kingdom, and therefore otherwise entitled at least to apply, the application of the person in the same position as the Claimants would necessarily be rejected without consideration of its merits whereas the application of the member of the comparator group would be considered on its merits provided they had entered the United Kingdom pursuant to a EUSS family permit in the last six months. If their permit had expired, their application would be considered provided they had reasonable grounds for not having made their application within that period. In my view there was therefore less favourable treatment of people in the position of the Claimants who were applying for pre settled or settled status under the EUSS on the FMQBC basis.

This example also seems to me to illustrate that the reason for the difference in treatment is not purely location. Magee concerned different legislative regimes being applicable in England and Wales on the one hand, and Northern Ireland on the other. By contrast, in the present case the approach to the cut off date which was applicable to the comparator group applied to EUSS family permit holders whether or not they were in the United Kingdom, and they could only make an application under the EUSS if they were here. In any event, I do not accept that Magee (or Carson) supports the proposition that differences in treatment which relate to, or are connected with, location are necessarily not on the ground of “other status” for the purposes of Article 14. In Carson the ECtHR said this at [70]:

“It is true that regional differences of treatment, resulting from the application of different legislation depending on the geographical location of an applicant, have been held not to be explained in terms of personal characteristics (see, for example, Magee v. the United Kingdom……. However, …these cases are not comparable to the present case, which involves the different application of the same pensions legislation to persons depending on their residence and presence abroad.”

The Court in Carson went on to conclude that:

“place of residence constitutes an aspect of personal status for the purposes of Article 14” [71]

Carson was also considered by the ECtHR in Bah, on which Mr de Mello relied. At [44]-[47] the Court concluded that immigration status may be “other status” for the purposes of Article 14. The facts that this is a legal status and that there is an element of choice on the part of the person (other than in the case of refugee status), rather than this being an immutable characteristic, does not lead to a different conclusion. Rather, these features of immigration status go to justification. Since they do not relate to a personal and immutable characteristic, the justification required will not be as weighty.

I therefore accept that in this case the ground for differentiation between the two groups is “other status” for the purposes of Article 14 i.e. the status of the comparator group as having entered the United Kingdom on a EUSS family permit for the purposes of making an application under the EUSS and/or the status of the Claimants as being resident here already and therefore not facing any obstacle to making an application.

I also accept that the two groups were in analogous, or sufficiently similar, situations. All members of both groups were non-EU national FMQBCs who were seeking, under the EUSS, to reside with a British citizen in this country having come here from an EU Member State. The Claimants were in the United Kingdom at all material times. The comparators were people who had obtained a EUSS family permit and come into the United Kingdom so that they could apply under the EUSS, but this did not mean that their situations were not analogous.

Turning, then, to justification, I accept that the aim of closing the FMQBC route under the EUSS was to put family members of British citizens who had previously had rights to reside here based on EU law, but no longer had them, on an equal footing with other family members of British citizens who wished to reside here. All would now be subject to the same Immigration Rules in relation to their right to join and reside with British citizens here.

This aim was also legitimate. I reject Mr de Mello’s argument that the situation of the Claimants was sufficiently different to that of family members of British citizens who had never had or exercised Surinder Singh/regulation 9 rights to require that they be treated differently on a permanent or indefinite basis. The reality was that those in the Claimants’ position had been treated more favourably than those who had not exercised or enjoyed EU law based rights, in that pre settled and settled status under the EUSS had been made available to the Claimants’ cohort although this was not required by the Withdrawal Agreement. The Scheme had also continued to be available to them for a period of nearly three years after they had ceased to have rights of residence under EU law although, from that point, they had been in materially the same position to FMQBCs who had never had such rights. It was predictable and unsurprising that the Defendant decided to bring this state of affairs to an end, in the interests of fairness, by closing the EUSS.

As to proportionality, I accept that the aim of the closure of the Scheme was sufficiently important to justify the limitation of the Claimants’ rights to make applications under it. Clearly, there was also a rational connection between the closure of the EUSS and the objective which was sought to be achieved in doing so: the closure of the FMQBC route was the obvious way in which to achieve consistency of treatment between those in the Claimants’ position and other FMQBCs who did not have EU based rights of residence here.

Nor do I accept Mr de Mello’s argument that a less intrusive measure could have been used without unacceptably compromising the achievement of the Defendant’s objective. His contention was, in effect, that the cut-off date should not have been applied to the Claimants and they should have been treated as having been lawfully resident for five years and given settled status under the EUSS. But this argument fails to engage with the correct Article 14 analysis of Ground 1 or, if it does, clearly would unacceptably compromise the objective of the closure of the EUSS FMQBC route as it would, in effect, abolish the cut-off date and, indeed, go further by deeming the Claimants to have been lawfully resident for the purposes of the EUSS.

As to the balance of rights and interests, the closure of the EUSS applied to both the Claimants and the comparator group and, with one caveat, it took effect on the same date. I cannot see that it was disproportionate to close the EUSS FMQBC route given that it went beyond what was required by the Withdrawal Agreement and, more importantly, was available for a substantial period of time after EU law ceased to apply in this country. The EUSS is a transitional scheme which forms part of the process of the United Kingdom leaving the European Union. It was inevitable or, at least, unsurprising that after a period of time the position of all FMQBCs who did not have pre settled or settled status under the EUSS would be brought into line so that they were subject to the same Immigration Rules, regardless of the background of the United Kingdom’s former membership of the European Union.

The Defendant’s evidence is that, when closing an immigration route, it is not her general practice to keep it open for late applications based on reasonable grounds for delay. Such an approach is not considered conducive to the clear and effective administration of the immigration system in the public interest. That approach seems to me to be one which the Defendant was entitled to take and was not disproportionate given the period of time which the FMQBC route had been open, given the steps which the Defendant had taken to publicise the need for people with rights based on EU law to regularise their immigration status by applying under the EUSS, and given that the Claimants’ cohort had been in the United Kingdom for some time. But, in any event, as I explain below in relation to Ground 4, it seems highly doubtful that the Claimants would have had what the Defendant would consider to be reasonable grounds for failing to apply to the EUSS before 9 August 2023 even if provision had been made for an extension of time on this basis.

As to whether the difference in treatment between the Claimants and the comparator group in relation to the cut-off date when closing the EUSS FMQBC route was proportionate, FMQBCs who were in the same position as the Claimants had been in the United Kingdom at least since before the end of the Transitional period. The EUSS had been open to them since March 2019 and throughout their time here. Steps had been taken to draw the EUSS to their attention, and the need to make an application for pre settled or settled status. They had had ample opportunity to apply to the EUSS and there was no obstacle to them doing so.

On the other hand, the members of the comparator group were abroad and unable to apply to the EUSS from outside the United Kingdom. By definition, they had “good” reasons not to have returned to the United Kingdom before the 29 March 2022 deadline (they would otherwise have been refused a EUSS family permit). They required a EUSS family permit in order to return and make an application to the EUSS, and they had to have applied for one by the 8 August 2023 deadline. In other words, they were required to have engaged with the EUSS before the cut-off date even if they had not applied to the Scheme itself. In effect, they were treated by the Defendant as a category of pending application. They were given a little more time to make their applications to the EUSS because they were abroad when they engaged with the process. As Ms Sienkiewicz explains:

“(a)

the deadline under the EUSS for all qualifying British citizens and their family members (including the Claimants) to physically return to the UK was 11pm on 29 March 2022, unless the entry clearance officer in considering an EUSS family permit application (or the SSHD in considering an EUSS application) was satisfied that there were reasonable grounds for the failure of the British citizen and/or the family member to meet that deadline;

(b)

This meant that where an EUSS family permit….had been granted on the basis of an application made under the FMQBC route after the 29 March 2022 deadline and by the 8 August 2023 cut-off date the SSHD would already have been satisfied that there were reasonable grounds for the failure of the British citizen and/or the family member to meet that deadline for returning to the UK, e.g. concerning employment or study, a serious medical condition or significant medical treatment, or other compelling practical or compassionate reasons;

(c)

Provision for a reasonable period for such a family member to apply to the EUSS following their arrival in the UK was therefore considered appropriate, taking into account that ….winding up their affairs overseas and making arrangements to relocate to the UK which could not reasonably be finalised before the EUSS family permit had been granted might have taken up much of the six-month period for which the EUSS family permit was valid. Individuals wishing to benefit from further time to apply to the EUSS would of course need to provide reasonable grounds for delay in making their application to the EUSS and include evidence about their own circumstances.”

Bearing in mind the nature of the Defendant’s decision, which related to immigration policy, in my view it cannot be said that the comparator group were treated disproportionately more favourably. The fact of their being justifiably outside the United Kingdom and therefore unable to make an application to the EUSS in the way the Claimants had been able to for some time, and the potential practicalities of them returning to the United Kingdom, justified the affording to them of a little leeway in relation to the 8 August 2023 cut-off date.

I therefore accept that the difference in the application of the 8 August 2023 deadline to the two groups was proportionate and justified.

For all of these reasons I reject Ground 1.

The argument under Ground 2 was that the Defendant had unjustifiably treated different cases alike. She had been wrong to take the view that fairness required the closure of the EUSS FMQBC route so that those who previously enjoyed EU law rights of residence but no longer had such rights were put on the same footing under the Immigration Rules as other FMQBCs. The Claimants and others in their position were in a materially different position to other FMQBCs in that they had exercised free movement rights whilst the United Kingdom was a member of the European Union and, Mr de Mello argued, had been lawfully resident here since then and in possession of valid residence cards.

It will be apparent from what is said above that I reject this argument. In my view it was justified and proportionate to conclude that after what was a generous period of time all FMQBCs who had previously had EU rights of residence but had not been granted pre settled or settled status here should be subject to the same rules as any other family member of British citizens who were seeking to reside here. Whilst the Claimants had once enjoyed rights of residence based on EU law, that was no longer the case. They were now in essentially the same position as others who did not have EU law rights and the Defendant’s decision that what, in effect, was more favourable treatment of them should come to an end was unsurprising.

I therefore reject Ground 2.

The argument under this Ground was that it was unreasonable to refuse to consider the Claimants’ applications because they had been submitted after the cut-off date. When they were granted their EEA residence cards the Claimants were not told that their cards, which were stated to be valid for 5 years, would not be treated as proof of the lawfulness of their residence. They also had no reason to think that their leave to remain would cease to be valid for the purposes of applying for settled status under the EUSS. It was also unfair to require the Claimants to use the paper application form and then to refuse to provide it to them because the 8 August 2023 cut-off date had passed.

At the hearing, Mr de Mello accepted that all of these arguments depend on whether the lack of provision, in the Claimants’ type of case, for consideration of applications which were late but on reasonable grounds was unlawful. If the lack of such provision was lawful it would follow that refusing to consider their applications was lawful. As will be apparent and for the reasons I have given, I accept that it was open to the Defendant not to make such provision.

Ground 4 therefore fails. But, even if there were provision for late applications to be made on reasonable grounds, it would have been entirely open to the Defendant to conclude that the Claimants did not have reasonable grounds for failing to apply before the cut-off date and highly likely that that would have been her decision. The Claimants’ evidence is, in effect, that they did not appreciate that they needed to apply to the EUSS before the expiry of their EEA residence cards. However, as noted above, they were alerted to the fact that the residence cards which they had applied for were linked to the United Kingdom’s membership of the EU, at least at the time when their applications were refused, and the relevant information was available to them throughout the process of obtaining those cards. They were also legally advised throughout that process and, in any event, the effect of Brexit and the need to apply under the EUSS was well publicised and appears to have been well understood given the number of people, including FMQBCs, who made applications. The Claimants were in this country at all material times and there was no obstacle to them making an application other than their failure to appreciate that they needed to do so.

The requirement to use a paper form was not argued by Mr de Mello to be objectionable per se: the problem was that it was not provided to the Claimants because there was no point in doing so. This aspect of Ground 4 therefore adds nothing.

I therefore reject Ground 4.

Ground 5 was essentially a repackaging of Grounds 1 and 2 with a view to submitting that the relevant aspects of the Defendant’s closure of the EUSS were irrational. Mr de Mello argued that it was unfair to treat the Claimants’ period of residence beyond “the exit date” as being without leave and thereby expose them to a period of uncertainty. It was also unfair to deny them the benefit of their post exit residence when calculating their eligibility for residence for ILR/settled status, to impose a cut off date and to disregard the savings provisions which applied to them. He cited passages from Secretary of State for Work and Pensions v Johnson & Others [2020] EWCA Civ 778 at [107] and [115] which referred to the need for a solution to what in that case was a very specific problem which had an arbitrary and harmful impact on the claimants and many others who were in the same position. Mr de Mello’s contention was that in the present case section 3(2) of the Immigration Act 1971 was used to frustrate rights of residence granted to those in the Claimants’ position and to prevent them from relying on 5 years’ lawful residence for the purposes of claiming ILR/settled status.

With respect, as with a number of Mr de Mello’s arguments, these submissions did not engage with the decision which was actually taken in this case and is under challenge. This was that the Claimants’ applications would not be considered on their merits under the EUSS because they failed to apply before the cut-off date for applications. That decision was, in my view, rational for the reasons which I have given. It is a mischaracterisation of the Defendant’s decision to suggest that it frustrated established rights and/or disregarded lawful periods of residence. The true position, as I have explained above, is that the effect of the Brexit legislation was that the Claimants lost their EU law rights of residence at the end of 2020 and therefore needed to regularise their immigration status. They were, however, given an opportunity to do this by applying for pre settled status under the EUSS, and to reside here lawfully on that basis pending an application for settled status after 5 years’ residence. It is unfortunate that they did not apply before the closure of the Scheme to them, but this does not render the Defendant’s approach irrational.

I therefore refuse permission on Ground 3 and I dismiss Grounds 1, 2, 4 and 5 and the Claim overall.