For EU nationals, moving to the UK in a post-Brexit climate remains difficult, even for those who have a British partner. This year, a slew of case law has clarified common questions about the immigration status of such couples. Earlier this year, Celik (EU exit; marriage; human rights) [2022] UKUT 00220 (IAC) dealt with what happens when an applicant is in the UK unlawfully, becomes engaged to an EU national, and is delayed in marrying (and registering their marriage) due to the impact of Covid-19. Celik established that unfortunately, a person – even if in a durable relationship with an EU citizen – has few rights under the EU Withdrawal Agreement unless that person either started residing in the UK before 11pm GMT on 31 December 2020 or they applied for such a facilitation by that point in time.
The recent case of Elais (fairness and extended family members) [2022] UKUT 300 (IAC) implied that the ruling in Celik was correct and considered 3 further issues which came before the Upper Tribunal:
Are post-Brexit marriages compelling evidence that someone is a ‘durable partner’?
If there is apparent bias on the part of a First-tier Tribunal Judge at the first hearing, can an appeal be allowed?
If a First-tier Tribunal Hearing is unfair, when can an appeal be allowed?
Mr. Elais, an Egyptian national, had entered the UK clandestinely, claimed asylum, and later withdrew his claim. Later, he applied for a residence card on the basis of being the durable partner of a citizen of Romania. They declared that the relationship began in September 2019, followed by an Islamic marriage in November and cohabiting in December.
Mr. Elais’ application was made before 31 December 2020. The Home Office refused to accept that they were in a durable relationship. By the time of the appeal (and after the key date of 31 December 2020), the couple had married. Per paragraph 18 of Elais, the First-tier Tribunal judge had begun the hearing by remarking that the Secretary of State was “fundamentally wrong” to claim that “the Islamic marriage is not evidence on which they can rely…indeed, it is strong evidence of the durability of the relationship at the time of the application.”
The Upper Tribunal disagreed that the marriage should be accepted at face value; because the marriage had taken place after 31 December 2020, the Upper Tribunal sided with the respondent on this, deciding that the Home Office was allowed to scrutinise whether the relationship was genuine.
The Home Office also argued that the judge’s opening remarks, which were about his initial perception of the case, gave the appearance of bias. In weighing whether the appearance of bias was unfair, the Upper Tribunal emphasised the importance of a judicial mind that was not closed. A judge who approached a case with “an expression of scepticism” is not in itself suggestive of bias, held Sir Thomas Bingham in Arab Monetary Fund v Hashim (1993) 6 Admin LR 348; it is whether a judicial mind remains closed in spite of legal or factual merits which should be concerning. The Upper Tribunal found the judge had not errored by giving an indication of his preliminary view, and thus the Home Office’s argument failed on this ground.
The Home Office also argued that the hearing was procedurally unfair, due to the judge’s continued interruptions during cross-examination. One such example was when the judge made several commentaries and then suggested that the respondent’s counsel had “assumed one meaning and then interpreted the appellant’s answers as being inconsistent” regarding the dates of nikah (Islamic marriage) and cohabitation. Per WA (Role and duties of judge) Egypt [2020] UKUT 127 (IAC), the judge’s role is “merely supervisory” when taking evidence and the Upper Tribunal held that the judge had interfered too much. He had “descended into the arena” to borrow the phrase used in Yuill v Yuill [1945]. On this ground, the hearing was therefore unfair, and the Mr. Elais’ case was sent back to the First-tier Tribunal to be heard again.
By Tiffany