EA138702021 [2023] UKAITUR EA138702021 (3 January 2023) (bailii.org)
What is a ‘durable partner’ as defined by the EU Settlement Scheme (EUSS)? The answer, which is contained in Annex 1 of Appendix EU, is difficult to define – even for Judge Caravan of the Upper Tribunal, who carefully considered it in EA/13870/2021.
The facts
EA/13870/2021 was about Ms. Kabir, who started living with her EEA national partner in September 2020. The couple stated that they had intended to marry, but COVID19 disrupted their plans. At the end of the transition period, following the UK’s exit from the EU, on 31st December 2020, Ms. Kabir did not hold a family permit or residence card (‘relevant document’). Nonetheless, she applied for leave to remain under the EU Settlement Scheme (EUSS).
The Secretary of State (SSHD) refused leave to remain, and Ms. Kabir brought an appeal under the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020. The First-Tier Tribunal judge noted that she did not have a relevant document prior to 31st December 2020 and examined Annex 1 of Appendix EU, which defines a ‘durable partner’ and offers guidance on how to treat those who have a relevant document, and those, like Ms. Kabir, who do not.
The judge examined paragraph (b)(ii)(bb)(aaa) in particular, but concluded that the relevant provision was ‘not clearly drafted’ and therefore, that Ms. Kabir had been in a committed relationship before 31 December 2020 and within the definition of a ‘durable partner.’
The SSHD appealed to the Upper Tribunal, pointing to the ‘unless’ clause in the last few lines of paragraph (b)(ii)(bb)(aaa): “The definition requires the appellant to not be resident as a durable partner and also…not otherwise have a lawful basis of stay in the UK.” The SSHD argued that because Ms. Kabir had an alternative lawful basis to remain at the time, she could not satisfy the definition of a durable partner.
The law
The Upper Tribunal discussed the definition of a durable partner as contained by Annex 1 in depth. A person needed to be in a durable relationship with an EEA citizen (or qualifying British citizen or relevant sponsor) living together in a relationship akin to marriage or civil partnership for at least 2 years. This usually means a couple is living together and committed. The UK Government website suggests applicants may be able to evidence their ‘durable relationship’ by submitting the following:
- bank statements,
- GP letters, and other official correspondence addressed to the couple’s shared address;
- joint bank accounts;
- business ventures or investments;
- joint responsibility of a child, such as a birth certificate or custody agreement.
Annex 1 is split into two sections, Annex 1 (b) (i) and Annex 1 (b) (ii). The former details the immigration rules applicable to those that hold a relevant document, and the latter, details the rules for those, like Ms. Kabir, who do not hold such document.
In this appeal, (b)(ii)(bb)(aaa) was under particular scrutiny. Unfortunately for the SSHD, the Upper Tribunal judge found this provision (and her representations) highly confusing, comparing the situation to Alice in Wonderland and suggesting that it was reasonable to “expect the Secretary of State…to be able to explain the meaning and effect of her own rules.” He concluded that paragraph (b)(ii) was about those who were applying as a joining family member after 31 December 2020 without a relevant document, but that ‘the meaning of sub-paragraph (aaa) was simply unclear.’
The decision
For the Upper Tribunal, the question was whether paragraph (b)(ii)(bb)(aaa) of Annex 1 of Appendix EU is helpful for those who do not have a relevant document, but do have a durable relationship with an EEA citizen and lawful leave at the date of their application.
The Upper Tribunal acknowledged that the intention of the Rules was to allow EU citizens and their families who were already in the UK to stay here after the transition period. Within Appendix EU, paragraph EU1 discusses how leave to enter or indefinite leave to remain can be obtained by such individuals, and subsequent provisions outline the procedure and requirements.
Despite this, the Upper Tribunal found that it was not possible to find the meaning of paragraph (b)(ii)(bb)(aaa) and therefore, the interpretation offered by the First-Tier tribunal was perfectly acceptable. Judge Caravan dismissed the SSHD’s appeal while remarking scathingly, “Some parts [of the legislation] are barely comprehensible even to experienced legal professionals, including the Secretary of State’s own representatives.”
It seems that until Annex 1, paragraph (b)(ii)(bb)(aaa) is clarified, applicants who were in the UK under another route may be able to apply under the EUSS for further leave if they were in a durable relationship, even if they do not hold a family permit, residence card or marriage certificate.
EA138702021 [2023] UKAITUR EA138702021 (3 January 2023) (bailii.org)
By : Tiffany Carpenter