Case No. UKUT-00063-(IAC)

22. The respondent contends that the construction advanced by the applicant ignores the significance of the words “eligible to apply” in paragraph E-LTRPT.2.3. This provision is not triggered simply when a person actually qualifies for leave to remain as a partner or in fact meets all the requirements for leave to remain as a partner. There is a distinction between someone who qualifies as a partner and someone who is eligible to apply as a partner. As the applicant had a ‘partner’ at the time of his application he was at least “eligible to apply” on the basis of his relationship with Ms Begum. This, the respondent submits, was sufficient to hold that he did not meet the requirement in E-LTRPT.2.3. 23. The respondent further contends that the applicant’s interpretation undermines the general scheme and structure of Appendix FM. A person may qualify for LTR under Appendix FM on the basis of their relationship with a settled person even in the circumstances where the definition in GEN.1.2 of that Appendix is not met. As happened in this case, although the applicant did not meet the definition in paragraph GEN.1.2 of Appendix FM, he was granted leave to remain pursuant to paragraph GEN.3.2 of that Appendix on account of exceptional circumstances. There is therefore no basis for the suggestion that a person’s failure to meet the definition in paragraph GEN.1.2 of Appendix FM somehow excludes him or her from that Appendix altogether. 24. The applicant ignores the significance of the words “unless a different meaning of partner applies elsewhere in this Appendix” in GEN.1.2 of Appendix FM. These words make plain that the definition in that provision does not apply to the word “partner” whenever it is used, irrespective of its context. The context in which this word is used in paragraph E-LTRPT.2.3 of Appendix FM to the Immigration Rules is clear. The obvious purpose is to limit grants of LTR as a parent to those who are not eligible to apply for LTR as a partner under the Appendix. When read in its proper context, the word “partner” in this provision is not limited to an applicant who has a partner that meets the definition in paragraph GEN.1.2 of Appendix FM. 25. With respect to the guidance document ‘Family Policy: Family life (as a partner or parent), private life and exceptional circumstances’, this provides that an applicant cannot meet the requirements of the parent route if they are or will be eligible to apply under the partner route, including where the definition of “partner” cannot be met. The respondent does not invite the Tribunal to read the policy guidance as an aid to the construction of the Immigration Rules, but the document is obviously correct and consistent with the interpretation advanced by the respondent. 26. Finally, the applicant’s construction would enable applicants to choose whether to apply under the parent or the partner route and this, in turn, would compromise the financial requirements for applicants under the partner route and would enable them to avoid those requirements by applying under the parent route.