[2024] UKUT 00068 (IAC)

The parties note that although there has been no reported authority concerning para. (aaa), there are at least two unreported authorities which do engage with and advance consistent positive explanations of para. (aaa): Basha v Secretary of State for the Home Department UI-2022-003113 (promulgated on 10 March 2023) and Drini v Secretary of State for the Home Department UI-2022-000383 (promulgated on 24 April 2023). Mr Georget invited us to follow the approach taken by these decisions, with some refinements to reflect the facts of these proceedings. Mr Deller expressly endorsed the reasoning in Basha, and did not demur in relation to Drini.

In Basha, the First-tier Tribunal had treated the “unless” clause at the heart of para. (aaa) as a positive attribute, meaning that a person in a durable partnership without a lawful basis of stay (and without a relevant document) was able to meet the definition of “durable partner”. Mr Basha had been in a durable partnership but otherwise had no lawful basis of stay and, acting in reliance on para. (aaa), the First-tier Tribunal allowed his appeal. The Secretary of State appealed to the Upper Tribunal; the appeal was allowed, the decision of the First-tier Tribunal was set aside and remade, and the appellant’s appeal was dismissed. At para. 31 of the Upper Tribunal’s decision, the panel held that the “unless” meant that where a putative durable partner did not hold a “relevant document” and did not otherwise have a lawful basis of stay, the criteria in para. (aaa) were incapable of being satisfied:

“If the ‘unless’ exception is engaged, the ‘first half’ criteria in paragraph (aaa) [i.e. the criteria preceding the ‘unless’] are incapable of being satisfied, and this route to qualify as a durable partner falls away. Put another way, if the ‘unless’ applies, an applicant will not be able to avail themselves of the route to recognition as a durable partner provided by the first half criteria in paragraph (aaa).”

In Drini, the appellant’s circumstances were similar to those of Mr Basha. He was found to be in a durable partnership on the specified date of 31 December 2020, but otherwise had no lawful basis of stay. His appeal was dismissed by the First-tier Tribunal, and on his appeal to the Upper Tribunal he submitted that para. (aaa) meant that his unlawful residence had the effect of disapplying the requirement to hold a “relevant document”, and that it should have been allowed. The appeal was dismissed by Upper Tribunal Judge Mandalia for reasons very similar to those adopted in Basha. See para. 24:

“The word ‘unless’ introduces an exception. The effect of that exception is that where an applicant can bring themselves within the scope of what follows after the word ‘unless’, the ‘first-half’ criteria in paragraph (aaa) are incapable of being satisfied, and that route to qualify as a durable partner falls away. In other words, if the ‘unless’ applies, an applicant will not be able to avail themselves of the route to recognition as a durable partner provided by the first half criteria in paragraph (aaa).”

The above unreported decisions may be contrasted with Secretary of State for the Home Department v Kabir UI-2022-002538, to which Mr Georget referred at para. 8 of his skeleton argument. The facts in Kabir were similar to the present matter, and those in Basha and Drini; the appellant had no lawful basis of stay on 31 December 2020, but was in a durable partnership. Relying on para. (aaa), the First-tier Tribunal allowed the appeal. The Secretary of State appealed. By a decision promulgated on 3 January 2023, a panel of the Upper Tribunal dismissed the appeal, on the basis that the meaning of para. (aaa) was not clear, and the Secretary of State had not demonstrated how and why the First-tier Tribunal made an error of law.

Neither party encouraged us to adopt the approach taken in Kabir, and we respectfully do not do so. Properly understood, the conclusion in Kabir was that it was not possible to reach a conclusion concerning the meaning of para. (aaa) on the basis of the submissions of the parties in those proceedings. Kabir did not rule out the possibility that a meaningful construction of para. (aaa) could be possible. In Basha and Drini, both of which post-date Kabir, different constitutions of the Upper Tribunal reached detailed, substantive and consistent conclusions about the interpretation of para. (aaa), on the basis of fuller submissions and greater assistance than the tribunal enjoyed in Kabir. We have considered the conclusions in Basha and Drini for ourselves (noting that a member of the present panel was also a member of the panel in Basha), and respectfully adopt them.