The High Court has provided clarity on the rules related to dependency for individuals who are not themselves EU nationals, but have a parent who is an EU national and has status under the United Kingdom’s EU Settlement Scheme. The case, Ms. Fatima Ali –v- Secretary of State for the Home Department, arose due to the claimant, Ms.Ali’s, desire to remain in the United Kingdom following her application in 2019 for leave to remain as pre-settled status under the EU Settlement Scheme. Ms. Ali, a Bangladeshi citizen sought to remain in the UK through her mother’s EU nationality, as a dependent and minor.
The lawyers in Giambrone & Partners’ immigration team point out that the case is of utmost importance providing significant guidance for future applicants with similar circumstances. Ms. Ali’s contention was that under the European Union law, the Immigration (European Economic Area) Regulations 2006, she could, as she was previously considered a dependent child under the age of 21 years she was assumed to be a “qualified person” under the regulations, which meant that she could remain in the UK. Therefore, in 2014 as Ms. Ali was 19 years old when she arrived in the UK to join her mother she therefore did not need to demonstrate her dependency on her mother.
Mrs. Ali was issued with an EEA residence card in 2015 that was valid for five years. During the time she was resident in the UK she became estranged from her mother and ceased to be dependent on her in 2016 when she was 20 years old. Ms. Ali made an application for pre-settled status in 2019 which was refused on the basis that she was no longer dependent on her mother and she was over 21 years old. She made an application for an administrative review but the refusal remained. Ms. Ali then applied for a judicial review.
Kavina Munja, paralegal, commented “This case enables future applicants with similar backgrounds to understand that before Brexit applicants who were granted their residence cards based on their dependency were expected to show that this dependency continued before they were eligible to any permanent residency documentation. The case of Fatima Ali, R (on the application of) v Secretary of State for the Home Department demonstrates that non-EU nationals in the UK have a slim chance of benefiting from the Withdrawal Agreement if they did not already obtained the right of residence before Brexit.” Kavine further explained, “this is because, despite being a child of an EU national, the dependency on a parent is signified through financial dependency rather than simply the relationship they share. The claim for this judicial review is integral and provides valuable information for individuals who themselves are not EU nationals, but have a parent with EU nationality. Furthermore, this case highlights the rights and eligibility when applying to the EU settlement scheme, whilst highlighting the importance in considering these before applying to any scheme where applicants may not be eligible.”
Ms. Ali’s contention was not upheld by the Court. The Judge pointed out that the case she relied on did not include the issue she raised and the Court of Justice in the European Union dealt with the meaning of dependency under the Directive and that she did not meet the conditions in that she was no longer dependent and was over the age of 21 years.
Giambrone & Partners’ immigration team reiterates that non-EU nationals have a slender chance of benefiting from reliance on the Withdrawal Agreement if they had not obtained right of residence before Brexit.
Because, despite being a child of an EU national, the general rule still applies where dependency on a parent is signified through financial dependency rather than simply the relationship they share.