Buci (Part 5A: "Partner")
| Jurisdiction | UK Non-devolved |
| Judge | Lane J,Mandalia UTJ |
| Judgment Date | 27 February 2020 |
| Neutral Citation | [2020] UKUT 87 (IAC) |
| Date | 27 February 2020 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2020] UKUT 87 (IAC)
UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Lane J (President) and Mandalia UTJ
Mr Z Malik instructed by Fisherwright Solicitors, for the Claimant;
Mr T Lindsay, Senior Home Office Presenting Officer, for the Secretary of State.
CI (Nigeria) v Secretary of State for the Home Department [2019] EWCA Civ 2027; [2020] Imm AR 191
El Gazzaz v Secretary of State for the Home Department [2018] EWCA Civ 532
NA (Pakistan) v Secretary of State for the Home Department; Secretary of State for the Home Department v KJ (Angola), WM (Afghanistan) and MY (Kenya)[2016] EWCA Civ 662; [2017] 1 WLR 207; [2017] Imm AR 1; [2016] INLR 587
Secretary of State for the Home Department v PF (Nigeria) [2019] EWCA Civ 1139; [2019] Imm AR 1351
European Convention on Human Rights, Article 8
Immigration (European Economic Area) Regulations 2016, rgulation 8
Immigration Rules HC 395 (as amended), paragraphs 6, 398–399A & Gen. 1.2 of Appendix FM
Nationality, Immigration and Asylum Act 2002, sections 117b, 117C & 117D
Human rights — Article 8 of the ECHR — family life — Part 5A of the Nationality, Immigration and Asylum Act 2002 — meaning of “partner” — no statutory definition — paragraph GEN.1.2 of Appendix FM to the Immigration Rules — evaluative assessment of relationship — procedure and process — deportation — foreign criminal — partner — unduly harsh test
The Claimant was a citizen of Albania, born in 1999. He was brought to the United Kingdom at the age of seven. Following an unsuccessful asylum claim and a period without leave, he was granted limited leave to remain until September 2016. Thereafter, the Secretary of State for the Home Department treated the Claimant as having statutorily extended leave. In September 2016, the Claimant was sentenced to ten months' detention and training for possession of a Class A drug with intent to supply. In December 2017, he was sentenced to three years' imprisonment for conspiring to supply Class A drugs. The Secretary of State ordered the Claimant's deportation as a result of his offending. The Claimant made a human rights claim, contending that his deportation would be contrary to Article 8 of the ECHR. The Secretary of State refused the claim in July 2018.
On appeal, one of the Claimant's witnesses was B, a British citizen. B's witness statement asserted that by April 2017 she and the Claimant were in a committed relationship, although they did not live together. The First-tier Tribunal (“FtT”) dismissed the Claimant's appeal. The Judge found that the Claimant and B were committed to some degree, but that such commitment did not make B the Claimant's fiancée. The Judge observed that there was no definition of the term “partner” in the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”). He accepted the Secretary of State's position that the definition of “partner” in Part 5A of the 2002 Act was supplied by the definition in paragraph GEN. 1.2 of Appendix FM to the Immigration Rules HC 395 (as amended), which included an applicant's spouse, civil partner, fiancé(e) or proposed civil partner or a person living together with the applicant in a relationship akin to a marriage or civil partnership. The Judge did not find that B was a partner of the Claimant for the purposes of section 117D of the 2002 Act or Appendix FM of the Rules.
The issues considered by the Upper Tribunal on appeal were whether the definition of partner in paragraph GEN. 1.2 of Appendix FM applied to Part 5A of the 2002 Act and how should the expression “partner” in Part 5 A be interpreted.
Held, dismissing the appeal:
(1) There was no definition of “partner” in paragraph 6 or paragraphs 398 to 399A of the Immigration Rules. Accordingly, the fact that references in paragraphs 398 to 399A to “partner” should be interpreted in the same way as in Part 5A of the 2002 Act in no way advanced the argument that the definition in paragraph GEN. 1.2 should apply both to Part 5A and paragraphs 398 to 399A. Given their similarities, section 117C of the 2002 Act and paragraphs 398 to 399A of the Rules should share a common meaning of “partner”. Whether that definition should be the one found in paragraph GEN. 1.2 was another matter. As a general matter of law, a definition in subordinate legislation or the Immigration Rules could not govern the interpretation of an expression found in primary legislation. In the absence of an express power in the parent Act to bring about such a situation, it was not open to the Executive, through the medium of subordinate legislation, to change the way in which the primary legislation operated. Accordingly, the definition of “partner” in GEN 1.2 of Appendix FM did not govern the way in which “partner” was to be interpreted in Part 5A (paras 10 and 12).
(2) Although the paradigm of family life, as enjoyed by partners, whether married or in civil partnerships, or not, was cohabitation, the Strasbourg caselaw on Article 8 of the ECHR was not so confined. It was possible for a couple, who were not married, in a civil partnership or formally intending to be so, to enjoy protected family life, even though they did not cohabit. Individuals might commit to each other, in a genuine and meaningful way, without full-time cohabitation. The expression “partner” meant a person to whom one had a genuine emotional commitment, of the same basic kind as between spouses and civil partners, albeit not necessarily characterised by present cohabitation. A “partner” was not the same as a friend, however strong the friendship might be. Nor was an adolescent's or other young person's boyfriend or girlfriend necessarily a “partner”. The position could, however, change if the relationship became sufficiently serious and committed (paras 15 – 18).
(3) Anyone who satisfied the definition of “partner” in paragraph GEN. 1.2 should, as a general matter, be regarded as being a “partner” for the purposes of Part 5A of the 2002 Act. Where a person did not fall within that definition, the judge would need to undertake a broad evaluative assessment of the relationship. The fact that there was no statutory definition of “partner” in Part 5A meant that, in a case of the instant kind, different judges might reach different conclusions as to whether, on a particular set of facts, an individual had been shown to be another person's partner. In practice, that was not likely to pose any significant difficulties, since the fundamental question in section 117C(5) of the 2002 Act was the effect of deportation on the partner. The nature and strength of the relationship between the foreign criminal and that of another person, said to be a partner, would directly inform whether deportation of the foreign criminal would have consequences that were unduly harsh for that other person. Given that there was no material difference between paragraphs 398 to 399A of the Rules and section 117C(3) to (6) of the 2002 Act, in order for Exception 2 to operate, it must be shown both that it would be unduly harsh for the alleged partner to leave the United Kingdom and that it would be unduly harsh for him or her to remain, without the physical presence of the foreign criminal. A relationship which was categorised as that of partners, where the parties had only recently met and were not cohabiting was, in general, far less likely to generate unduly harsh consequences, if the foreign criminal was deported, compared with where a relationship was longstanding and there had been significant co-habitation (paras 19 – 21).
(4) Where a relationship was not considered to be one of partners, it would still be necessary to consider whether the effect of deportation on the other person would be so serious as to amount to a disproportionate interference with Article 8 rights. In reality it would not frequently be the case that a relationship, which was not that of a partner but which was of a kind described in Exceptions 1 and 2, would lead the foreign criminal to success under section 117C(6) of the 2002 Act. There could be situations where it would be productive of error to draw too bright a line between subsections (5) and (6), at least in cases of “medium offenders” that were not concerned with so-called near-misses but where the relevant matters were similar to, but not actually within, Exception 2: NA (Pakistan) v Secretary of State for the Home Department)[2016] EWCA Civ 662 applied. That meant, in cases of the instant kind, the substance of the relationship between the foreign criminal and the other person needed to be examined...
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