Upper Tribunal Dismisses Appeal for Pre-Settled Status Under EUSS

OUTCOME: Dismissed

IN THE UPPER TRIBUNAL IMMIGRATION

AND

ASYLUM CHAMBER Case No: UI-2022-002827 First-tier Tribunal No: EA/13270/2021 THE IMMIGRATION ACTS Decision & Reasons Issued: 22nd January 2024 Before UPPER TRIBUNAL JUDGE BRUCE DEPUTY UPPER TRIBUNAL JUDGE SAFFER Between SECRETARY OF STATE FOR THE HOME DEPARTMENT Appellant and [RESPONDENT] Respondent Representation: For the Appellant: [redacted] For the Respondent: [redacted] Heard at Phoenix House (Bradford) on 17 January 2024

DECISION AND

REASONS 1. For consistency with the First-tier Tribunal we shall refer to Mr [RESPONDENT] as the Appellant and the Secretary of State as the Respondent.

2. The Appellant was born on [DATE]. He is a citizen of Albania. He appealed against the decision of the Respondent dated 6 August 2021, refusing his [NAME] for Pre-Settled Status under the [NAME] ([NAME]) as the [NAME] in the United Kingdom. © CROWN COPYRIGHT 2024

Appeal No: UI-2022-002827 (EA/13270/2021)

3. The Respondent appeals against the decision of First-tier Tribunal Judge Bashir, promulgated on 30 March 2022, allowing the appeal. Permission to appeal 4. Permission was granted by Upper Tribunal Judge Macleman on 25 October 2022 who stated: “2. Judge Bashir allowed the appeal, explaining at [33] that the appellant showed that he was “… in a [NAME] relationship and as such a family member of a [NAME] by the specified date”; ...

3. The grounds contend that the finding was irrelevant because the appellant’s residence had not been “facilitated”, no such [NAME] having been made before 31 December 2020. That qualifies for debate.” The Appellant’s grounds seeking permission to appeal 5. The grounds asserted that: “…b) The Appellant’s [NAME] for status under [NAME] was as the family member of a [NAME]. It Is submitted that the Appellant could not succeed as a spouse, as the marriage took place after the specified date (31 December 2020). The [NAME] was additionally considered under the [NAME] partner route where it was also bound to fail. [NAME] requires a “[NAME] document” as evidence that residence as a ‘[NAME] partner’ had been facilitated under the EEA regulations. This stipulation transposed the requirements of Article 3.2(b) of Directive 2004/38/EC. No such document was held as no [NAME] for facilitation as a ‘[NAME] partner’ had ever been made by the Appellant, prior to the specified date. c) It is submitted that the question of whether and how the relationship was in fact “[NAME]” at any [NAME] date, as is found by the FTTJ at [32] and [33] of the determination, is of no consequence. The scheme rules could simply not be met by a [NAME] partner whose residence had not been facilitated. This is reflected in Article 10(2) of the Withdrawal Agreement permitting the continued residence of a [NAME], with an additional transitional provision in Article 10(3) for those who had applied for such facilitation before 31 December 2020. This Appellant had not made any such [NAME] and therefore could not satisfy the requirements of [NAME].” The First-tier Tribunal decision 6. Judge Bashir made the following findings [NAME] to the issues before us: “26. … the Appellant is required to demonstrate that his [NAME] with his [NAME] i.e. the [NAME], was formed and was [NAME] before 11:00pm on 31 December 2020, and that their [NAME] remained [NAME] at the date of [NAME] i.e. on April 2021… 30. ... I find that they are in a genuine and subsisting relationship...

31. I now proceed to consider whether the Appellant and [NAME] were in a [NAME] relationship. I have already found that they have not lived together in a relationship akin to marriage for at least two years. The dictionary definition of [NAME] is that it has the ability to withstand pressure and the wear of time and that it is long-standing an enduring. The relationship should have a sense of permanency either through marriage or by virtue of the length of time and the parties should intend that the relationship will continue on a permanent basis. 2

Appeal No: UI-2022-002827 (EA/13270/2021) 32. …I find that the definition of a [NAME] marriage in Annex 1 allows for relationships which have existed akin to marriage for less than two years. Consequently, in light of all the evidence before me I find that the appellant has demonstrated on a balance of probabilities that his relationship with the [NAME] was [NAME] by the specified date and continues to subsist as such which has also been demonstrated by their subsequent marriage.

33. In summary I find the appellant does not meet the requirements of a family member as a spouse by the specified date of 31 December 2020. However, I find that he was in a [NAME] relationship having lived together akin to marriage since September 2020, … I find the Appellant has discharged the burden upon him to demonstrate he was in a [NAME] relationship and as such was a family member of a [NAME] by the specified date.” Rule 24 notice 7. There was no Rule 24 notice. The Appellant’s representatives filed a skeleton argument on 16 January 2024 which Ms [NAME] asked to deem a Rule 24 notice. The [NAME] parts are as follows: “6. … The appellant maintains that he met the definition as a [NAME] partner under [NAME], Annex 1 part (b)(ii)(bb)(aaa) of the immigration rules… 10. The issue before the [NAME] is in what circumstances does an applicant, who does not have a residence card required, qualify under the [NAME], Annex 1 (b)(ii)(bb) (aaa). The appellant submits an alternative argument to the (aaa) submission, that the Tribunal should not follow the case of [NAME] ([NAME] exit; marriage; human rights) [2022] UKUT 00220 ([NAME]).

11. The Tribunal is not obliged to follow [NAME], given that [NAME] is not a starred decision and as such it is not and was not binding on the FTT. The appellant’s 4 arguments remain unresolved on matters which were not, it appears, argued before the [NAME] in Celik.

12. The [NAME] is made under [NAME] of [NAME] as the family member of a [NAME]. Family member is defined (n.b. only the [NAME] provisions have been quoted, emphasis added): Family member of a [NAME] [NAME] who does not meet the definition of ‘joining family member of a [NAME] [NAME]’ in this table, and who has satisfied the Secretary of State, including by the required evidence of family relationship, that they are (and for the [NAME] period have been), or (as the case may be) for the [NAME] period (or at the [NAME] time) they were: …(ii) the applicant was the [NAME] partner of the [NAME] before the specified date (the definition of ‘[NAME] partner’ in this table being met before that date rather than at the date of [NAME]), and the [NAME] remained [NAME] at the specified date; or [NAME] partner is defined: (a) the person is, or (as the case may be) for the [NAME] period was, in a [NAME] relationship with a [NAME], with the couple having lived together in a relationship akin to a marriage or civil [NAME] for at least two years (unless there is other significant evidence of the [NAME] relationship); and (b)…(ii) where the person is applying as the [NAME] partner of a [NAME] [NAME]… and does not hold a document of the type to which sub-paragraph (b)(i) above applies, and where: (aa) the date of [NAME] is after the specified date; and (bb) the person: (aaa) was not resident in the [NAME] as the [NAME] partner of a [NAME] (where that [NAME] is their [NAME] [NAME]) on a basis which met the definition of ‘family member of a [NAME]’ in this table, or, as the case may be…any time before the specified date, unless the reason why, in the [NAME] case, they were not so resident is that they did not hold a [NAME] document as the [NAME] partner of a [NAME] for that period 3

Appeal No: UI-2022-002827 (EA/13270/2021) (where their [NAME] [NAME] is that [NAME]) and they did not otherwise have a lawful basis of stay in the [NAME] for that period; … the Secretary of State is satisfied by evidence provided by the person that the [NAME] was formed and was [NAME] before (in the case of a family member of a [NAME] as described in sub-paragraph (a)(i)(bb) or (a)(iii) of that entry in this table) the date and time of withdrawal and otherwise before the specified date…;

13. The above is fiendish to follow. It is impenetrable. The rules are unclear as to what the requirements are. The appellant submits that it is permissible to read the rules so as to mean that an EEA document is not required in order to meet the requirement of the rules. That the rules are so unclear raises significant access to justice issues...

15. The appellant submits that the provisions of (aaa) are met in this case: The person was not resident in the [NAME] as the [NAME] partner of a [NAME] on a basis which met the definition of ‘family member of a [NAME]’ unless the reason why, they were not so resident is that they did not hold a [NAME] document as the [NAME] partner of a [NAME] for that period. It is asserted the criteria are positive ones, i.e. if [NAME] meets this criteria, then they do satisfy the definition. The person was not resident in the UK as the [NAME] partner of a [NAME] The appellant argues that he was a [NAME] partner, so on this plain phrase, she would not meet the rule. However: unless the reason why they were not so resident is that they did not hold a [NAME] document as the [NAME] partner of a [NAME] for that period 16. This qualification necessarily means that if [NAME] was in a [NAME] relationship as at 31/12/20, and they did not have a residence card, then the “unless” clause bites, with the consequence that they positively meet the criteria in (aaa). The final part of the definition is plainly met. The appellant had no other lawful basis of stay. and they did not otherwise have a lawful basis of stay in the [NAME] for that period 17. The appellant was only not resident as the [NAME] partner pre-31/12/20 because of a lack of a document. The architecture of the rule broken down shows that the [NAME] satisfies the provisions of (aaa) if the only reason why they were not resident as a [NAME] partner was because they did not have the [NAME] document. The appellant submits that to interpret it in any different way renders the entire section of the rules redundant given the requirement for a document in (b)(i). It makes no sense for a document to be required in (b)(i) and (b)(ii), given the criteria are either (i) or (ii).

18. The rules in (b)(i) merely require a “[NAME] document”, they say nothing as to the relationship being ongoing. However (b)(ii) does require [definition of joining family of [NAME]]: the Secretary of State is satisfied by evidence provided by the person that the [NAME] was formed and was [NAME] before (in the case of a family member of a [NAME] as described in sub-paragraph (a)(i)(bb) or (a)(iii) of that entry in this table) the date and time of withdrawal and otherwise before the specified date; and 19. This provision therefore requires [NAME] to be in a [NAME] relationship prior to the 31/12/20, the appellant submits therefore that when read as a whole, (b)(ii)(aaa) means: a. Where [NAME] was in a [NAME] relationship pre-31/12/20; b. Did not have a document showing as much; c. Had no other lawful basis to stay d. And that the relationship was [NAME] prior to 31/12/20 20. It is submitted that the requirements of the rules are met.

21. In support of this understanding of the rules is that one of the requirements of a [NAME] include being a [NAME] partner at the specified date, and a spouse at the date of the [NAME]. This necessarily envisages a situation of a [NAME] [NAME] converting into marriage. In such a particular 4

Appeal No: UI-2022-002827 (EA/13270/2021) situation the appellant argues it is inconsistent to then also require a document as a [NAME] partner to have been granted pre 31/12/20.

22. Further, and perhaps of more significance is that the respondent’s own guidance for applicants, found at [NAME]: evidence of relationship, plainly outlines the rules as not requiring a document when [NAME] was in a [NAME] relationship at the specified date (emphasis added): If you’re their [NAME] ([NAME]) partner You must hold a [NAME] document issued to you under the EEA Regulations on the basis that you’re the [NAME] partner of an EEA or Swiss citizen or person of Northern Ireland. A [NAME] document here includes: a family permit a residence card… If you do not have a [NAME] document, you’ll need to show evidence: - of your relationship to your [NAME] ([NAME]) partner - that your relationship existed by 31 December 2020 – that your relationship continues to exist on the date you apply The above exert from this guidance shows that the requirement to have a document is not fatal to any [NAME], provided that the evidence of the relationship can be shown to have existed as of 25 February 2020 and that it continues to exist. In other words, the Respondent tells applicants that they do not necessarily need a document under the EEA Regulations 2016 in order to qualify for status as a [NAME] partner. This guidance is entirely consistent with the appellant’s interpretation of the rules and is contrary to the respondent’s. 23. … The respondent’s only reason for refusal is that the appellant did not have a document before end of 31/12/20, however on their own guidance for applicants this is not necessary.

24. The appellant therefore submits that his interpretation of the requirements of [NAME] is consistent with the respondent’s own guidance to applicants. There is still no authority as to what [NAME], Annex 1 part (b)(ii)(bb)(aaa) means, it is therefore incumbent on the Tribunal to determine: a. What it means; and b. Whether the appellant meets those requirements. Conclusion 25. It is submitted the correct interpretation of [NAME], Annex 1 part (b)(ii)(bb) (aaa) is as set out in the above submissions and that the appellant does indeed meet the requirements. It is submitted the finding of IJ [NAME] was entirely [NAME] to the appellants case and did not err in law.” Oral submissions 8. Ms [NAME] sought to amend the skeleton argument in that the definition of [NAME] partner contained within [NAME], Annex 1 part (b)(ii)(bb) (aaa) states (our emphasis added); “(bb) The person (aaa) was not resident in the [NAME] as the [NAME] partner of a [NAME] (where that [NAME] is their [NAME] [NAME]) on a basis which met the entry for ‘family member of a [NAME]’ in this table, or, as the case may be, as the [NAME] partner of the [NAME], at (in either case) any time before the specified date, unless (in the [NAME] case): - the reason why they were not so resident is that they did not hold a [NAME] document as the [NAME] partner of that [NAME] for that period; and - they otherwise had a lawful basis of stay in the [NAME] for that period” 5

Appeal No: UI-2022-002827 (EA/13270/2021)

9. Mr [APPELLANT] submitted that the rules are not met. The Appellant does not meet the description of a [NAME] partner. The appeal is on all fours with the timetable as explained in Celik.

10. Ms [NAME] relied upon the skeleton argument as amended. The Respondent had not challenged the finding that the Appellant was a [NAME] partner. The issue is the relevance of documentation. The findings were open to the Judge as summarised in the decision at [33] (see our [6] above). It is accepted that the Appellant is undocumented. The immigration rules changed in April 2023. The Respondent’s [NAME] Settlement guidance was last updated in September 2022 Discussion 11. It is trite law that we are bound by Court of Appeal decisions. [NAME] ([NAME] exit; marriage; human rights) [2022] UKUT 00220 ([NAME]) is starred or not is irrelevant as the decision was appealed. In [NAME] v Secretary of State for the Home Department [2023] EWCA Civ 921 the Court stated at [68] (our emphasis): “The Upper Tribunal was correct in deciding that the decision of 23 June 2021 was in accordance with the requirements of the rules in [NAME] and rule [NAME] and [NAME] in particular. The fact is that the appellant was not a family member at the material time. He had not married an [NAME] national before 11 p.m. on 31 December 2020. He was not a [NAME] partner within the meaning of Annex 1 to [NAME] as he did not have a residence card as required and he did not have a lawful basis of stay in the United Kingdom (he was in the United Kingdom unlawfully). The appellant did not qualify for leave to remain under [NAME]. There is no obligation to interpret or “read down” the [NAME] rules to reach a different result.

12. It is clear from [NAME], Annex 1 part (b)(ii)(bb)(aaa) that in order to succeed under the rules, the Appellant had to have “a lawful basis of stay in the [NAME] for that period”.

13. The submission that the Appellant had a lawful basis of stay as he was a [NAME] partner is unarguable as to be a [NAME] partner there was a requirement that he had “a lawful basis stay” which it is conceded that he did not. The Respondent’s guidance in the [NAME]: evidence of relationship does not have the force of law. Contrary to that which is asserted in the skeleton argument at [13] the rules are not impenetrable. They are clear. The Appellant had no lawful basis to be in the United Kingdom at any [NAME] time and could not meet the immigration rules.

14. There was accordingly a material error of law.

15. Both representatives submitted that if we found that there was a material error of law, the appeal did not require remittal to the First-tier 6

Appeal No: UI-2022-002827 (EA/13270/2021) Tribunal, as on the proper construction of the law, the appeal could not have succeeded. Notice of Decision 16. The Judge did make a material error of law. We set aside that decision. We remake the decision and dismiss Mr [RESPONDENT]’s appeal. Laurence Saffer Deputy Judge of the Upper Tribunal Immigration and Asylum Chamber 17 January 2024 NOTIFICATION OF APPEAL RIGHTS 1. [NAME] seeking permission to appeal against this decision must make a written [NAME] to the Upper Tribunal. Any such [NAME] must be received by the Upper Tribunal within the appropriate period after this decision was sent to the [NAME]. The appropriate period varies, as follows, according to the location of the individual and the way in which the Upper Tribunal’s decision was sent:

2. Where the person who appealed to the First-tier Tribunal is in the United Kingdom at the time that the [NAME] for permission to appeal is made, and is not in detention under the Immigration Acts, the appropriate period is 12 working days (10 working days, if the notice of decision is sent electronically).

3. Where the [NAME] is in detention under the Immigration Acts, the appropriate period is 7 working days (5 working days, if the notice of decision is sent electronically).

4. Where the person who appealed to the First-tier Tribunal is outside the United Kingdom at the time that the [NAME] for permission to appeal is made, the appropriate period is 38 days (10 working days, if the notice of decision is sent electronically).

5. A “working day” means any day except a Saturday or a Sunday, Christmas Day, Good Friday or a bank holiday.

6. The date when the decision is “sent’ is that appearing on the covering letter or covering email. 7