Case No. UKUT-00063-(IAC)

5. The application was determined in a decision dated 1 October 2019. The decision made no reference to the applicant’s relationship with his eldest child or to the 5-year parent route in Appendix FM. The applicant was informed that he did not meet the requirements for a grant of leave under the 10-year partner route under paragraphs R-LTRP.1.1.(d) of Appendix FM because: Your partner is unmarried, and you have not provided 2 years evidence of co-habitation prior to the application. You therefore fail to meet the requirements of GEN1.2. of Appendix FM of the Immigration Rules. 6. The respondent however considered that there were “exceptional circumstances” in the applicant’s case, as understood by reference to GEN.3.2. of Appendix FM, which would render a refusal of LTR a breach of Article 8 ECHR. The respondent accepted that the applicant held a genuine relationship with both his British citizen partner and child (although it is unclear which child was being referred to) and that any removal of the applicant would result in a breach of Article 8. The applicant was therefore granted a period of 30 months LTR but, significantly for him, this was now on the 10-year partner route under paragraph D-LTRP.1.2 of Appendix FM. 7. On 9 October 2019 the applicant requested a reconsideration of the decision to grant him LTR under the 10-year partner route. I have not been provided with a copy of this application but nothing turns on it. It is apparent from the reconsideration decision, dated 20 November 2019, that the applicant was aggrieved that he had been placed on the 10-year route to settlement and believed he should have been granted a further period of LTR under the 5-year parent route to settlement. It is uncontroversial that the applicant and Ms Begum had only been living together for approximately 1½ years when he made his application in June 2019. He could not therefore meet the definition of partner contained in GEN.1.2. 8. In her reconsideration decision of 20 November 2019 the respondent acknowledged that the applicant had previously been granted LTR under the 5-year parent route to settlement but stated that his circumstances, as detailed in his June 2019 application and supporting documents, had changed. The decision explained: As you now have a partner your application was considered under the partner routes of Appendix FM of the Immigration Rules. However, as you fail to meet the requirement of GEN.1.2. of Appendix FM of the Immigration Rules, as detailed in our decision letter of 01 October 2019, you do not meet the requirements for leave as a partner on either the 5 or 10 year routes to settlement. As you now have a partner you do not meet the requirements for leave as a parent on either the 5 or 10 year routes to settlement as you fail to meet the requirement of E- LTRPT.2.3. However, as detailed in our letter of 01 October 2019, under paragraph GEN.3.2. of Appendix FM, there are exceptional circumstances in your case which would render refusal a breach of Article 8. Any grant of leave on the basis of exceptional circumstances is either leave outside the rules or on one of the 10 year routes to settlement as a partner or parent. Leave on the basis of exceptional circumstances is not granted on one of the 5 year routes to settlement as a partner or parent, as appropriate. As you have a partner you were granted a period of 30 months limited leave to remain on the 10-year partner route under paragraph D- LTRP.1.2 of Appendix FM. I hope this clarifies our decision making process. 9. The applicant lodged his judicial review on 3 January 2020. In summary, he asserts that the term “partner” in E-LTRPT.2.3(b)(iii) of Appendix FM should be given the same meaning as the definition of partner under GEN.1.2 of that Appendix, and that if he does not meet that definition of “partner” he cannot be said to be “eligible to apply for leave to remain as a partner”. The respondent however contends that the term “eligible to apply for leave to remain as a partner” is to be given a broader meaning. 10. Permission to proceed with the judicial review challenge was granted on the papers by Upper Tribunal Judge Norton-Taylor in a decision sent on 8 February 2020.