This appeal relates to an application lodged by ICS Legal on behalf of the appellant under the EU Settlement Scheme Appeal, which was then wrongly refused by the Home Office and the First Tier Tribunal agreed with ICS Legal in allowing the immigration appeal.

Full facts of the case and what we did are set out as follows. Please note due to data protection, the appellant's name or any relevant details are not enclosed. 

Summary case facts

We applied for the appellant leave to remain under the EU Settlement Scheme, and was refused by the Home Office. In their decision letter, Home Office failed to apply the policy. The appellant maintained that there was a clear and fundamental breach of the sponsor’s EU rights under Regulation 8 of the 2016 Regulations.

Home Office maintained that the applicant and the sponsor had not been living together in a relationship akin to marriage for two years prior to 31st December 2020 and that the Rules required this.

The appeal matter before the First Tier Tribunal

Immigration Tribunal Judge Quinn presided over the matter at the IAC Hatton Cross. 

Home Office made the following submissions before Judge "He emphasised that the timing of the application was important as it was nine days before the effect of the Withdrawal Agreement and he said that it should have been dealt with under the EEA Regulations of 2016 and it may have slipped through the net due to the vast number of applications that were made, (he quoted a figure of 3.5 million applications)."

In doing so, the Judge used this to confirm that the Home Office was wrong in applying the rules and that the 2 years test of relationship was a rule of thumb. Paragraph 45 of the judgement, the Judge stated "To prevent her from doing that would in my view be a disproportionate decision and a misinterpretation of the EU law and its intentions." whereby he had found that the decision made by the Home Office was simply wrong. 

The Judge allowed the appeal with the closing argument "The Respondent's policy was to ensure stability for EEA citizens resident in the UK and their family members and denying the Appellant the right to live with his wife would infringe her EU rights considerably and would in my view be disproportionate."