Bingyan Lin & Anor, R (on the application of) v The Secretary of State for the Home Department [2026] EWHC 457 (Admin)

[2026] EWHC 457 (Admin)Case No AC-2024-LON-004128
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 05/03/2026
Before
MR JUSTICE LINDEN
Between
THE KINGClaimantsThe Secretary of State for the Home DepartmentDefendant
Ramby de Mello and Edward Nicholson (instructed by David Tang & Co) for ClaimantsKatharine Elliot (instructed by Government Legal Department) for DefendantHearing Hearing date: 29 January 2026
Approved JudgmentThis judgment was handed down remotely at 10.30am on 5 March 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................MR JUSTICE LINDEN

Introduction

[1]The Claimants are Chinese nationals. The first Claimant is married to a British citizen, Mr Zhenliang Huang, and the second is their son aged 24. Their evidence is that they have lived in the United Kingdom since March 2018.[2]The Claimants came to reside here on the basis that they were non-EU national family members of a qualifying British citizen (“FMQBC”), Mr Huang, who had exercised free movement rights under European Union law elsewhere in the EU before returning to the United Kingdom. They were therefore entitled to reside with him in this country pursuant to the decision of the European Court of Justice in R v Immigration Appeal Tribunal and Surinder Singh ex parte Secretary of State for the Home Department (Case C-370/90) [1992] 3 CMLR 358 (“Surinder Singh”), which had been given effect by regulation 9 of the Immigration (European Economic Area) Regulations 2016 (“the 2016 Regulations”). On 25 June 2019 and 29 January 2020, respectively, EEA residence cards were issued to the Claimants which stated that they were valid for five years.[3]As is well known, the United Kingdom left the European Union at 11pm on 31 January 2020 (“Brexit”). There was then a transitional period until 11pm on 31 December 2020 during which EU law continued to apply (“the Transitional period”). However at this point EU rights to free movement, other EU derived rights relating to immigration, and the 2016 Regulations, were revoked by paragraph 2(2) of Schedule 1 to the Immigration and Social Security Co-Ordination (EU Withdrawal) Act 2020.[4]In anticipation of this, on 30 March 2019 the government of the day introduced Immigration Rules Appendix EU - the European Union Settlement Scheme (“EUSS” or “the Scheme”) which permitted applications for leave to remain to be made by those who had EU residence rights, including FMQBCs, notwithstanding Brexit. The EUSS remained open to applications, including by those in the position of the Claimants, for the next more than four years. However, on 17 July 2023 the Government published and laid before Parliament “Statement of Changes to the Immigration Rules HC 1496” which included provision to close the EUSS FMQBC route with effect from 8 August 2023.[5]On 19 December 2023, the Claimants submitted online applications for indefinite leave to remain (“ILR”), or settled status, under the EUSS on the basis that they had been resident here for more than five years. However, their applications were refused on 13 September and 22 October 2024 respectively, on the grounds that they had not used the appropriate (paper) form to make their applications and that, in any event, the FMQBC route under the EUSS had closed to them with effect from 8 August 2023. There was also no provision for out of time applications.[6]Proceedings for judicial review of the Defendant’s refusals of their applications were issued by the Claimants on 17 December 2024 and, on 20 October 2025, Mr Benjamin Douglas-Jones KC (sitting as a Deputy High Court Judge) gave permission on the papers in relation Grounds 1, 2, 4 and 5 of the Claimants’ Grounds of challenge. He refused permission on Ground 3.[7]The principal ground on which the Claimants rely is Ground 1, which is that the 8 August 2023 cut-off date for applicants in their position was contrary to Article 14 of the European Convention in Human Rights (“ECHR”), read with Article 8. The comparator group for the purposes of the Claimants’ argument that they were discriminated against is people who had obtained entry clearance as FMQBCs (“a EUSS family permit”) under Immigration Rules Appendix EU (Family Permit) with a view to entering the United Kingdom from abroad and then applying under the EUSS for leave to remain (“the comparator group”). A person in the comparator group who had applied for a EUSS family permit by 8 August 2023 had until the expiry of their permit (six months) to enter the United Kingdom and make their application under the EUSS, but this deadline could be extended if there were reasonable grounds for the delay in applying.[8]The Claimants also rely on the following grounds of challenge: i) Ground 2, which is that the Defendant’s decisions to refuse to consider the Claimants’ EUSS applications after the 8 August 2023 cut off on the grounds that this would be unfair to others who were subject to the cut-off date and/or other FMQBCs was not justified. There was a sufficient difference, between the cases of the Claimants and those of the comparator group and other foreign national family members who wished to join a British citizen from abroad, to justify treating the Claimants differently. In particular, the Claimants had been lawfully resident in the United Kingdom since 2018, were (it is argued) lawfully resident at the time of their applications and would be lawfully resident until the expiry of their EEA residence permits. They were therefore entitled to more generous treatment. ii) Ground 4, which is that it was unreasonable for the Defendant to refuse to consider the Claimants’ applications after the 8 August 2023 deadline. In particular, the Claimants had no reason to believe that their EEA residence permits would not be accepted as proof of lawful residence and that their leave to remain would cease to be valid for the purposes of claiming ILR/settled status. The requirement that applicants submit their applications in paper form was also unreasonable as the form was not provided to them when requested because the FMQBC route was closed to them. iii) Ground 5, which is that the decisions of the Defendant were irrational for essentially the same reasons as they were unlawful on Grounds 1 and 2. It was irrational not to make provision for the Claimants to be permitted to apply for ILR/settled status under the EUSS before the expiry of their leave to remain given that (it is argued) they would by then have resided here lawfully for at least 5 years, or alternatively it was irrational not to make provision for out of time applications to be considered where the delay was on reasonable grounds. The effect of the Defendant’s approach had been to frustrate the Claimants’ rights of residence and prevent them from benefiting from the consequences of their continuous lawful residence by applying for ILR/settled status.[9]Ground 3, in respect of which Mr Douglas-Jones KC refused permission, is that the Defendant was wrong to have taken the position that on 30 June 2021 the Claimants’ EEA residence cards had ceased to be valid as evidence of their lawful residence. The Claimants’ application for permission in relation to this Ground was renewed before me.

Context

[10]It is not necessary to trace the Claimants’ full immigration history, which was not in dispute, in detail. The key points for present purposes are that: i) At all material times the Claimants’ rights to reside in this country were based purely on EU law as implemented by regulation 9 of the 2016 Regulations. In broad summary they were family members of, and living with, Mr Huang, a British citizen, who exercised free movement rights by returning to the United Kingdom from Ireland. They were therefore entitled to accompany or join him here. ii) The Claimants first applied for EEA residence cards on 2 July 2018. Their solicitors in the present proceedings, David Tang & Co, acted for them in relation to those applications and were their nominated Home Office email contact for these purposes. On 28 September 2018, the Claimants’ applications were refused by the Defendant. They appealed to the First Tier Tribunal against those decisions on 4 October 2018 and 17 April 2019 and their appeals were upheld on 17 May and 20 September 2019 respectively. The biometric EEA residence cards (“BRCs”) which were then issued to the Claimants on 25 June 2019 and 29 January 2020 respectively were stated to be valid for 5 years.[11]Some time before the Claimants first applied for EEA residence cards, on 23 June 2016, the United Kingdom voted to leave the European Union. The implications of this decision were very much a matter of public discussion and debate thereafter, particularly in the United Kingdom.[12]From 6 June 2017, GOV.UK pages setting out information on residence card applications, including under regulation 9 of the 2016 Regulations, informed applicants and prospective applicants that EEA residence cards would not be valid proof of residence rights after the United Kingdom left the European Union, and that a new scheme would be brought into existence to which they would need to apply. This information was updated on 11 June 2018 – so shortly before the Claimants’ first applications for residence cards - to confirm that residence cards would not be valid proof of residence rights after 31 December 2020. Moreover, the letters which rejected the Claimants’ applications on 28 September 2018 also said “Please note: The residence documentation which you have applied for is linked to the UK’s membership of the EU.” and invited them to sign up for email alerts for the latest information about the status of EU citizens and their families, including FMQBCs, who had previously exercised Treaty rights in another Member State.[13]On 17 October 2019, the Withdrawal Agreement was reached between the European Union and the United Kingdom. The preamble to the Withdrawal Agreement recognised that it was “necessary to provide reciprocal protection for Union citizens and for United Kingdom nationals, as well as their respective family members, where they have exercised free movement rights before a date set in this Agreement”. Part 2 of the Withdrawal Agreement guaranteed the rights of EU nationals and certain of their family members who were resident in the United Kingdom, as well as certain categories of third country national who had derivative rights. Such persons were entitled to reside in the United Kingdom in accordance with the terms of the Withdrawal Agreement, and their rights were given effect in domestic law by section 7A of the European Union (Withdrawal) Act 2018 as amended by section 5 of the European Union (Withdrawal Agreement) Act 2020.[14]However, certain groups of persons who had rights under EU law prior to the United Kingdom leaving the European Union did not have their rights protected by the Withdrawal Agreement. These included those who had rights of residence derived from the Surinder Singh principle and regulation 9 of the 2016 Regulations i.e. the Claimants.[15]Article 18 of the Withdrawal Agreement provided that the United Kingdom or a Member State of the European Union could require those who had rights guaranteed under the Withdrawal Agreement to apply for a new residence status which conferred those rights, and for a document which evidenced such status. The purpose of this requirement would be to verify that the individual had rights of residence under the Withdrawal Agreement, and Article 18(1)(b) provided that “the deadline for submitting the application shall not be less than 6 months from the end of the transition period”.[16]It was pursuant to Article 18 that the EUSS was introduced under the Immigration Rules on 30 March 2019, around the time that the Claimants were in the process of appealing to the First Tier Tribunal against the initial refusal of their applications for EEA residence cards. The purpose of the EUSS was to give residence rights in the United Kingdom to EU, EEA and Swiss citizens who had, prior to the end of the Transitional period, been living here, and in some circumstances also to their family members. The rights in question took the form of either limited or indefinite leave to remain, referred to as ‘pre-settled’ or ‘settled’ status depending, amongst other conditions, on whether the person had been resident in the United Kingdom for five years or less.[17]It was also decided by the Government of the day that the categories of person who were eligible to apply to the EUSS would go beyond what was required by the Withdrawal Agreement. In addition to those who had rights under the Withdrawal Agreement, the EUSS would be open to applications from categories which included primary carers of British citizens who had a right to reside here (“Zambrano primary carers”) and FMQBCs who had a right to reside here on the Surinder Singh/regulation 9 basis before the end of the Transitional period. This was first announced on 21 June 2018 and it was confirmed in Statement of Changes in Immigration Rules HC 1919 on 7 March 2019. Again this was during the period when the Claimants were, with the advice and assistance of lawyers, applying for EEA residence cards/challenging the initial refusals of those applications.[18]Section 1 of the Immigration and Social Security Co-ordination (EU Withdrawal Act) 2020 provided that Schedule 1 to the Act made provision(a) to “end rights to free movement of persons under EU law…” and(b) to “end other EU-derived rights, and repeal other retained EU law, relating to immigration”. Paragraph 2(2) of Schedule 2 to the 2020 Act then specifically revoked the 2016 Regulations with effect from the end of the Transitional period, i.e. at 11 pm on 31 December 2020. From this point, EU law ceased to apply in the United Kingdom, save for the arrangements provided for in the Withdrawal Agreement: see R (Independent Monitoring Authority for Citizens’ Rights Agreements) v Secretary of State for the Home Department [2022] EWHC 3274 (Admin), at [130].[19]As the Court of Appeal said in Ahmad v Secretary of State for the Home Department [2025] EWCA Civ 829, [2025] 1 WLR 4368 at [23]:
“23. Certain groups of persons who had rights under EU law prior to the United Kingdom leaving the European Union did not have their rights protected by the Withdrawal Agreement….. They would have no rights under the Withdrawal Agreement nor under EU law after the end of the transition period. Any rights they had would be rights granted under domestic law.”
[20]This was the position in the case of the Claimants.[21]The revocation of the 2016 Regulations was subject to: i) The Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020 (“the Application Regulations”), regulation 3 of which provided that specified provisions of the 2016 Regulations, including regulation 9, would continue to have effect for a grace period of 6 months in relation to a person who was lawfully resident in the United Kingdom on this basis immediately before the end of the Transitional period, but who had not acquired residence rights under the EUSS. As a matter of domestic law, they would be treated as continuing to have such rights until the main deadline for EUSS applications, which was 30 June 2021. The Application Regulations also made provision for situations where an application for the new residence status was made during the grace period but was determined after the end of it. ii) The Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020 (the “Transitional Regulations”). So far as relevant to the present case, paragraph 3(4) of Schedule 3 to the Transitional Regulations provided that regulation 18 of the 2016 Regulations continued to apply for the purposes of determining applications for residence cards which were made before, but had not been determined by, the end of the Transitional period when the 2016 Regulations were revoked. Regulation 9 also continued to apply in a modified form for the purposes of deciding whether such an application should be granted: see paragraphs 4 and 6(1)(h) of Schedule 3.[22]The Application Regulations meant that people in the Claimants’ position had rights of residence under domestic law from the end of the Transitional period to the end of the grace period on 30 June 2021. However, the Transitional Regulations had no relevance to the Claimants’ cases as they already had EEA residence permits and had not made applications which were pending at the end of the Transitional period.[23]I note that the GOV.UK website continued to provide information and updates as to the position. For example, as at 6 January 2021 the “UK residence cards” page stated:
“Overview You can no longer apply for a UK residence card. If you already have a card, it will not be valid after 30 June 2021. (emphasis added) Living in the UK after 30 June 2021…”
Living in the UK after 30 June 2021…”[24]The page went on to explain that people in the Claimants’ position could apply to the EUSS for pre settled or settled status.[25]Ms Sienkiewicz (a Grade 7 official in the EEA Citizens’ Rights and Hong Kong Unit of the Migration and Borders Group of the Home Office) says in her witness statement dated 3 December 2025 that, on 18 June 2021 and 28 June 2022, the Defendant emailed everyone who had been issued with an EEA residence card for whom it had an address, to encourage them to apply to the EUSS. The emails directed them to the guidance about the Scheme and provided them with contact details for the Defendant’s Resolution Centre in the event that they had questions. i) The 18 June 2021 email said that now that the United Kingdom had left the EU, and EU law no longer applied, people with EEA residence cards may need to apply to the EUSS to protect their existing rights:
“You may need to apply even if you have a BRC [EEA residence card] (including a permanent residence card) which expires after 30 June 2021” ii) The 28 June 2022 email said: “You are receiving this email because Home Office records show that you have been issued with a [BRC] and may have not yet applied to the [EUSS]. The BRC was issued as evidence of your European Economic Area (EEA) rights in the UK under EU law. The UK has left the European Union (EU) and EU law no longer applies. You cannot use your current BRC to evidence your rights in the UK. You should consider if you need to apply to the [EUSS] to obtain the immigration status you need to continue living in the UK, even if you have a BRC (including a permanent residence card) which has not yet expired.”
[26]Ms Sienkiewicz says that she and her team have consulted the Biometric Immigration Document Management Unit in the Home Office, which was responsible for collating the distribution list and sending out these emails. They have confirmed that an email address for both Claimants - xxxxx@davidtang.co.uk - was included in the database used for the sending of both emails. This is the address of David Tang & Co, who acted for them in relation to their applications for EEA residence cards between 2018 and 2020, albeit the firm was not instructed from 31 January 2020 to 23 November 2023. It was given as the Claimants’ contact address in their July 2018 applications and it is also a live email account which has been used by the firm in the context of these proceedings. As per standard Home Office practice when sending standardised emails to large groups of people, no electronic record was kept of the actual sending of the emails to specific addresses but there is no evidence to suggest that they were not in fact sent to the Claimants at this address.[27]However, in correspondence David Tang & Co have said that they have carried out careful searches and these emails were not received. Nor were the equivalent emails to any of their other c154 clients whom they had assisted in relation to applications for EEA residence cards. The Claimants also deny knowledge of these emails. Ms Elliot appeared sceptical about whether it could be the case that David Tang & Co had not received the emails, but I was not asked to make a finding as to whether they were or were not received by the firm and do not do so. Nor was it suggested that, contrary to their evidence, the Claimants were aware of these emails. I therefore take them into account only for the purposes of illustrating one of the ways in which the Defendant took steps to inform affected residence card holders of their need to apply to the EUSS. This is relevant to the question of justification in relation to the Article 14 challenge.[28]After 30 June 2021, the EUSS remained open to applications for residence rights, including by people in the Claimants’ position. Ms Sienkiewicz says that since the opening of the Scheme on 30 March 2019 there have been major public communications and outreach campaigns about the EUSS, costing around £3.75 million. Around £32.5 million in grant funding (through to 31 March 2026) has been assigned to a UK-wide network of community organisations which have so far helped more than 560,000 vulnerable people to apply to the EUSS. The Defendant has also continued to operate its Resolution Centre which is open seven days a week to assist applicants, their advisers, or those seeking more information about the EUSS by telephone or email. Information has also continued to be available on GOV.UK regarding relevant deadlines and processes.[29]However, on 17 July 2023 “Statement of Changes in Immigration Rules HC 1496” was presented to Parliament by the Defendant and published on GOV.UK. [7.2] of this Statement of Changes said, so far as material:
“7.2 The changes in respect of the Immigration Rules for the EUSS in Appendix EU are as follows: …… • Route closures to close the EUSS on 8 August 2023 to new applications under two routes not covered by the Agreements: family member of a qualifying British citizen (on their return to the UK having exercised free movement rights…known as ‘Surinder Singh’ cases) and primary carer of a British citizen (known as ‘Zambrano’ cases). The UK made more generous transitional provisions enabling such persons to access the EUSS for more than four years. It is now appropriate, as a matter of fairness to other British citizens wishing to sponsor foreign national family members to settle in the UK, that any new applications should have to meet the family Immigration Rules applicable to others. The routes will remain open to those who are already on them (or with a pending application, administrative review or appeal) or who have pending access to them via a relevant EUSS family permit.”
(emphasis added) • Route closures to close the EUSS on 8 August 2023 to new applications under two routes not covered by the Agreements: family member of a qualifying British citizen (on their return to the UK having exercised free movement rights…known as ‘Surinder Singh’ cases) and primary carer of a British citizen (known as ‘Zambrano’ cases). The UK made more generous transitional provisions enabling such persons to access the EUSS for more than four years. It is now appropriate, as a matter of fairness to other British citizens wishing to sponsor foreign national family members to settle in the UK, that any new applications should have to meet the family Immigration Rules applicable to others. The routes will remain open to those who are already on them (or with a pending application, administrative review or appeal) or who have pending access to them via a relevant EUSS family permit.” (emphasis added)[30]At [7.3] the Statement of Changes went on to say:
“7.3 The changes in respect of the Immigration Rules for the EUSS family permit in Appendix EU (Family Permit) close the EUSS family permit on 8 August 2023 to new applications by a family member of a qualifying British citizen, in line with the closure of the EUSS to such applications from that date. Those granted an EUSS family permit as such a family member (including on appeal), following an application made by 8 August 2023, will still be able to come to the UK. They will be able to apply here to the EUSS where they do so before the expiry of the leave to enter granted by virtue of having arrived in the UK with that entry clearance (or later where they have reasonable grounds for their delay in making their application).”
[31]Although the majority of the different types of application under the EUSS could be made online, it was decided at the outset that certain categories of applicant, including FMQBCs, would be required to make paper applications because of the more complex set of questions which they were required to answer. This requirement was also made clear on GOV.UK at the outset of the EUSS and at all material times thereafter.[32]In late November 2023, the Claimants sought advice from David Tang & Co in relation to applying for indefinite leave to remain. They do not say what prompted them to do so at this point. They had by now resided here for five years, but they had more than six months and one year respectively before the expiry of their EEA residence cards. David Tang & Co contacted the Resolution Centre on 27 November 2023, requesting EUSS FMQBC paper application forms, but were refused on the grounds that the FMQBC route under the EUSS had closed to new applications from people in their position on 8 August 2023.[33]The Claimants then used the online application process to apply to the EUSS on 18 December 2023. Their applications were based on their claimed relationship to ‘a relevant EEA citizen’ and they incorrectly stated that Mr Huang was an Irish citizen. When this was appreciated by the Defendant, their applications were rejected for the reasons which I have explained.[34]By 30 September 2024, 8.2 million applications had been made under the EUSS and 5.7 million people had been granted status under the Scheme. As at 30 September 2025, the Defendant had received around 17,000 FMQBC applications under the EUSS. More than 7,000 have led to the grant of pre-settled status and more than 6,000 to the grant of settled status. Ground 3: did the Claimants’ EEA residence cards cease to be valid as evidence of their lawful residence on 30 June 2021? Preliminary note[35]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.[36]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.[37]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.

The general position in relation to EEA residence cards

[38]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].[39]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.” (a)five years from the date of issue;…... (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.”
[40]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.[41]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: i) The general rule is that an administrative decision or act remains valid until set aside by operation of law (Vasa v Secretary of State for the Home Department [2024] EWCA Civ 777; [2025] 1 WLR 39 at [68]-[69]). ii) The Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 “did not repeal the residence card or the card holder’s residence”. iii) Regulation 18(7)(c) of the 2016 Regulations only applied to loss of the right to reside in the situations specified in Part 4 of the 2016 Regulations, which identified circumstances in which persons may be refused admission to the United Kingdom, or removed, and/or their rights of residence terminated or cancelled. iv) The Application Regulations did not provide support for the Defendant’s case on this issue. It was not necessary for these Regulations expressly to provide that the possession of a valid EEA residence card combined with the fact of residence in this country could establish rights of residence here, as this was obvious.[42]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.[43]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;…” (c)affect any right, privilege, obligation or liability acquired, accrued or incurred under that enactment;…”
[44]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.[45]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.[46]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.[47]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.[48]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.[49]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.[50]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. Ground 1: the challenge under Article 14 ECHR Legal framework

Ground 1: the challenge under Article 14 ECHR

[51]Article 14 ECHR provides that:
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
[52]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?”
[53]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.[54]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.”
[55]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’ argument

[56]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.[57]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.[58]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].[59]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].[60]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.

The Defendant’s argument

[61]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.[62]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.[63]Ms Elliot submitted, however, that in any event the difference in treatment between the Claimants and the comparator group was objectively justified.

Discussion

[64]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.[65]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.”
[66]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][67]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.[68]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.[69]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.[70]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.[71]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.[72]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.[73]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.[74]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.[75]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.[76]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.[77]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.”
[78]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.[79]I therefore accept that the difference in the application of the 8 August 2023 deadline to the two groups was proportionate and justified.[80]For all of these reasons I reject Ground 1.

Ground 2

[81]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.[82]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.[83]I therefore reject Ground 2.

Ground 4

[84]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.[85]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.[86]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.[87]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.[88]I therefore reject Ground 4.

Ground 5

[89]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.[90]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.

Conclusion

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