Upper Tribunal (Immigration and asylum chamber), 2023-03-10, EA/12386/2021
| Appeal Number | EA/12386/2021 |
| Hearing Date | 11 January 2023 |
| Published date | 27 March 2023 |
| Date | 10 March 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: UI- 2022-003113
|
IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI- 2022-003113 First-tier Tribunal No: EA/12386/2021 |
|
|
|
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On the 10 March 2023
Before
UPPER TRIBUNAL JUDGE STEPHEN SMITH
DEPUTY UPPER TRIBUNAL JUDGE HARIA
Between
Secretary of State for the Home Department
Appellant
and
Orgest Basha
(NO ANONYMITY DIRECTION MADE)
Respondent
Representation:
For the Appellant: Mr S. Whitwell, Senior Home Office Presenting Officer
For the Respondent: Mr J. Collins, Counsel, instructed by Sentinel Solicitors
Heard at Field House on 11 January 2023
DECISION AND REASONS
-
This is an appeal by the Secretary of State against a decision of First-tier Tribunal Judge Anthony (“the judge”) promulgated on 29 March 2022. The judge allowed an appeal against a decision of the Secretary of State dated 12 August 2021 to refuse the appellant’s application for leave to remain under the EU Settlement Scheme (“the EUSS”).
-
We will refer to the appellant before the First-tier Tribunal as “the appellant” for ease of reference.
Factual background
-
The appellant is a citizen of Albania born on 13 August 1992. He does not appear to hold leave to remain, or to have otherwise been lawfully granted entry to the United Kingdom. In December 2019, he began to cohabit with Sonia Anisoara Raducanu, a citizen of Romania (“the sponsor”). They got engaged in 2020 and wanted to get married as soon as possible. They attempted to make arrangements to do so in June and July 2020, and later throughout the year, but were ultimately unable to do so because, on their case and the judge’s findings, of the Covid-19 situation pertaining in the UK at the time. They eventually got married on 17 May 2021.
-
On 26 May 2021, the appellant applied for pre-settled status under the EUSS. That application was refused by the Secretary of State for the following reasons. First, the marriage between the appellant and the sponsor took place after the conclusion of the “implementation period” (“the IP”) under the EU-UK Withdrawal Agreement (“the WA”), namely 11PM on 31 December 2020. Secondly, he could not succeed as a “durable partner” in the alternative, since he had not been issued with a “relevant document”, namely a residence card or an EEA family permit in that capacity under the Immigration (European Economic Area) Regulations 2016 (“the 2016 Regulations”).
-
The appellant appealed to the First-tier Tribunal. The judge found that, had Covid-19 not disrupted their plans, they would have married before the conclusion of the IP “and most likely would not be in the position that they find themselves now” (para. 23).
-
The judge’s operative analysis focussed on the definition of “durable partner” contained in Annex 1 to Appendix EU. She examined the constituent provisions of the definition in turn, reaching unchallenged findings that the appellant and the sponsor were in a genuine relationship (para. 34). She accepted that the appellant could not meet the requirement contained in para (b)(i) of the definition to have been issued with a “relevant document”, and her analysis therefore focussed on the provisions of the definition which address applicants who had not been issued with a relevant document, namely the criteria contained in paragraph (b)(ii) and following.
-
The crux of the judge’s operative analysis lay in her interpretation of paragraph (b)(ii)(bb)(aaa) of the definition, which provides that a “durable partner” was a person who:
“(aaa) was not resident in the UK and Islands as the durable partner of a relevant EEA citizen (where that relevant EEA citizen is their relevant sponsor) on a basis which met the definition of ‘family member of a relevant EEA citizen’ in this table, or, as the case may be, as the durable partner of the qualifying British citizen, at (in either case) any time before the specified date, unless the reason why, in the former case, they were not so resident is that they did not hold a relevant document as the durable partner of a relevant EEA citizen for that period (where their relevant sponsor is that relevant EEA citizen) and they did not otherwise have a lawful basis of stay in the UK and Islands for that period…”
In this decision, we refer to this paragraph as “para. (aaa)”. The judge supplied the above emphasis, which we have replicated.
-
At para. 41 the judge said:
“The sentence which follows from “unless” appears to provide for circumstances in which someone who is not resident can still satisfy the definition of a durable partner.”
-
There appears to have been extensive discussion at the hearing before the judge as to whether para. (aaa) applied only to persons from abroad (see para. 42). The appellant’s representative was unable to shed any light on the meaning of the provision (see para. 43), and the Secretary of State’s guidance was, found the judge “most unhelpful”, as it simply reiterated para. (aaa) without any further explanatory notes (para. 44).
-
Against that background, the judge found that the word “otherwise” in para. (aaa) was a “reference to a lawful basis of stay in any other capacity, not under the [2016] Regulations.” The judge interpreted the “unless” clause in para. (aaa) as rendering the absence of any lawful status a positive attribute, pursuant to which an applicant could meet the definition of a “durable partner”. The judge concluded her analysis on this point in the following terms, at para. 46:
“Therefore, I find the appellant satisfies requirement (b)(ii)(bb)(aaa) because the appellant was ‘not resident’ as he did not hold a relevant document as the durable partner of a relevant EEA citizen who is his sponsor and he did not otherwise have a lawful basis of stay in the UK for the period prior to the specified date.”
-
The judge allowed the appeal on the above basis. However, before concluding her decision she added, at para. 48:
“In the alternative, I agree with Mr Azmi [the appellant’s representative’s] principal submission that the respondent’s decision is not in accordance with the Withdrawal Agreement as the Withdrawal Agreement does not require the appellant to possess a family permit or a residence card before an application can be made under Appendix EU. I agree with Mr Azmi that to require the appellant to do so is an unreasonable burden and contrary to the Withdrawal Agreement.”
-
The judge allowed the appeal, observing that the appellant was entitled to pre-settled status.
Grounds of appeal
-
The grounds of appeal contend that that the judge erred in her understanding of para. (aaa), adopting an incorrect interpretation of the provision which rendered the requirements of the WA for a putative durable partner to have been lawfully resident on 31 December 2020 obsolete. Secondly, the WA confers no substantive rights on a person in the appellant’s circumstances. Pursuant to Article 10(1)(e) WA, only those who were residing in accordance with EU law at 11PM on 31 December 2020 are within the scope of the agreement.
-
Permission to appeal was granted by First-tier Tribunal Judge L J Murray, who considered that it was arguable that the judge’s interpretation of para. (aaa) was flawed.
Submissions
-
Mr Whitwell relied on the grounds of appeal, noting that they were settled before the decision of this tribunal in Celik (EU exit; marriage; human rights) [2022] UKUT 220 (IAC). Celik underlined the need for a putative durable partner to have their residence facilitated, he submitted. The purpose of para. (aaa) was to prevent those without any lawful basis to reside in the UK from enjoying any rights under the WA, he submitted. Para. (aaa) recognises that there would be some durable partner applicants who enjoyed leave to remain, or a right to reside, on another basis at the relevant time, and so could not have been expected to apply for their residence to be facilitated.
-
For the appellant, Mr Collins emphasised that there has been an application for permission to appeal to the Court of Appeal in Celik, which remains pending, but expressly did not invite us to adjourn the proceedings. He disputed the assertion in the Secretary of State’s grounds of appeal that a person such as this appellant is outside the scope of the WA. He added that the tribunal in Celik recognised that there would be some cases where a person otherwise outside the personal scope of the agreement nevertheless enjoys a proportionality-based basis to be brought within its scope, and that the assessment of proportionality was a matter for the judge. To the extent Celik militated in favour of a contrary conclusion, we should not follow it.
The law
-
Article 10 of the WA provides, where relevant:
“1. Without prejudice to Title III, this Part shall apply to the following persons:
[…]
(e) family members of the persons referred to in points (a) to (d), provided that they fulfil one of the following conditions: (i) they resided in the host State in accordance with Union law before the end of the transition period and continue to reside there thereafter…
2. Persons falling under points (a) and (b) of Article 3(2) of...
To continue reading
Request your trial