Upper Tribunal (Immigration and asylum chamber), 2022-12-03, EA/12811/2021

Appeal NumberEA/12811/2021
Hearing Date26 October 2022
Published date20 December 2022
Date03 December 2022
CourtUpper Tribunal (Immigration and Asylum Chamber)

Appeal Number: UI-2022-003120

Appeal Number: UI-2022-003120





Heard at Field House

Decision & Reasons Promulgated

On 26 October 2022

On 3 December 2022











For the Appellant: Ms S Cunha, Senior Presenting Officer

For the Respondent: Ms J Bond, instructed by Oaks Solicitors


  1. The Secretary of State for the Home Department appeals, with permission granted by the First-tier Tribunal, against the decision of Judge Ford (“the judge”) dated 30 March 2022. By that decision, the judge allowed Mr Kuka’s appeal against the Secretary of State’s decision to refuse his application for leave to remain under Appendix EU of the Immigration Rules.

  2. To avoid confusion, I shall refer to the parties as they were before the First-tier Tribunal: Mr Kuka as the appellant and the Secretary of State as the respondent.

  3. The appellant is an Albanian national who was born on 7 August 1994. He entered the UK unlawfully in 2019 and remained unlawfully until 10 June 2021, when he made an application for leave to remain under Appendix EU of the Immigration Rules as the spouse of a qualifying EU national. That application was refused and the appellant appealed to the First-tier Tribunal.

The Decision of the First-tier Tribunal

  1. The judge noted that it was common ground between the parties that the appellant and his wife, a Greek national named Majlinda Bushati, had married on 28 May 2021. They had been unable to marry before the end of the transition period (on 31 December 2020), despite attempts to do so, because of the national lockdowns due to the Coronavirus pandemic. They had been in a durable relationship prior to their marriage. Whilst they had not cohabited for two years, there was ample evidence to show that it was a settled relationship akin to marriage. The appellant had then applied for leave to remain under the EU settlement scheme on 10 June 2021.

  2. The judge noted that the respondent had refused the application because she was not satisfied that the appellant qualified under Appendix EU. He had not been issued with a family permit or residence card and the marriage had not taken place prior to the specified date.

  3. The judge allowed the appeal because she found that the respondent’s decision was not in accordance with the UK’s obligations under the Withdrawal Agreement. She considered that the failure to make any allowance for the ‘truly exceptional’ reason that the appellant and his wife had been unable to marry was disproportionate. They had been unable to marry before the specified date but they had done so before 30 June 2021, the cut-off date for family members to apply for leave to remain under the EU Settlement Scheme. The respondent had suggested that the appellant should leave the UK in order to make an entry clearance application but that went beyond what was necessary in order to achieve the objective of regularising the status of EU nationals resident in the UK at the date of withdrawal and their qualifying family members. The judge found that the appellant and his wife had established family life together in accordance with “the Immigration (EU) Regulations 2016” as at the specified date, regardless of whether the appellant held a relevant document as at 31.12.20. At [19], the judge said this:

The Respondent argues that those who have entered the UK illegally cannot be given an immigration advantage not given to those who comply with the law and enter lawfully. I can see the superficial attractiveness of this approach as it would appear to ensure that all applicants are treated equally, but it fails to recognise the special position of EU nationals and their families present and exercising Treaty rights in the UK as at 31.12.2020. It also fails to recognise that under the Immigration (EEA) Regulations 2016 there was no requirement that a spouse of a qualifying EEA national be lawfully resident in the UK before they could be treated as a qualifying family member and issued with a Residence card.

  1. The judge therefore concluded that the decision breached the proportionality principle recognised by ‘the withdrawal treaty’.

The Appeal to the Upper Tribunal

  1. The respondent’s grounds of appeal to the Upper Tribunal submit that the judge misdirected herself in law in two respects. Firstly, it is submitted that the judge erred in concluding that the appellant had any redress under the Withdrawal Agreement because his residence was not being facilitated on 31 December 2020. The respondent submitted, secondly, that the judge had erred in treating the ‘grace period’, which ended on 31 June 021, as extending the time period within which the appellant could become lawfully resident under the Immigration (EEA) Regulations 2016.

  2. First-tier Tribunal Judge Murray granted permission to appeal. She noted that the appellant did not have a relevant document and that his marriage post-dated the specified date, in which circumstances it was arguable that he was not residing in the UK in accordance with EU Law prior to the UK’s exit from the EU.

  3. After permission was granted, Presidential panels of the Upper Tribunal issued the decisions in Celik (EU exit; marriage; human rights) [2022] UKUT 00220 (IAC) and Batool & Ors (other family members: EU exit) [2022] UKUT 00219 (IAC).

  4. Counsel who appeared for the appellant before the First-tier Tribunal (Barnabas Lams) settled a response to the grounds of appeal on 14 October 2022. The response was filed and served with a helpful bundle of authorities.

  5. Mr Lams was unable to attend the hearing and an application to adjourn the appeal so that he could represent the appellant was refused by an Upper Tribunal Lawyer. That application was not renewed before a judge and Ms Bond of counsel was instructed to represent the appellant.

Preliminary Matters

  1. At the outset of the hearing, it was unfortunately necessary to give Ms Cunha, who represented the Secretary of State before me, additional time. She had attended court late and had only learned that there was a detailed response to the grounds of appeal at the start of the hearing. The bundle had evidently been served on the respondent but had not, for whatever reason, been brought to Ms Cunha’s attention. I gave her time in which to consider the rule 24 response and the bundle of authorities.

  2. On my return to court, Ms Cunha did not state that the arguments in the rule 24 response necessarily caused her any difficulty. She did seek an adjournment, however, in order to introduce material from Hansard. She was unable to give me the date of the relevant debate or the name of the minister who had made the statement in question. Nor, it transpired, was she able to state that there had even been a debate during which anything relevant had been said. What she hoped, however, was that something had been said during a debate on an amendment to the Immigration (EEA) Regulations 2016 which might assist her in the submissions she wished to make about the fundamental difference between the position of direct family members and extended family members in EU Law.

  3. I refused that application for several reasons. Firstly, an adjournment granted on that basis would not necessarily have yielded any material from Hansard. Ms Cunha was not able to state whether any such material existed. Secondly, it is not immediately apparent to me why there would have been a debate in Parliament about a statutory instrument such as the 2016 Regulations. Thirdly, even if there had been a debate (for whatever reason), I could not see how the requirements in Pepper v Hart [1993] AC 593 were conceivably met. The respondent does not say that there is any ambiguity in the wording of any of the relevant provisions. I was not told by Ms Cunha that there was an Act to which this application related and it is not clear, in those circumstances, that there was a relevant Bill in connection with which there was a relevant statement made by the Promoter of the Bill.

  4. Fourthly, leaving all that to one side, the key instrument in these proceedings is not a piece of domestic legislation but an international treaty, in the form of the Withdrawal Agreement. I cannot immediately conceive of a way in which Parliamentary debate could properly shed light on the meaning of a treaty, to which the principles of the Vienna Convention apply. Were it otherwise, there is every risk that each individual signatory to the treaty would adopt a different construction of it, based upon words said domestically. If recourse to any external aids to construction is permissible, it would surely be only the travaux preparatoires, rather than purely domestic material.

  5. I refused Ms Cunha’s application to adjourn...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT