[2024] UKUT 00068 (IAC)

The principles we are to apply are not in dispute. In Odelola v Secretary of State for the Home Department [2009] UKHL 25, [2009] 1 WLR 1230 at para. 4, Lord Hoffman summarised the task of constructing a provision of the Immigration Rules in these terms:

“Like any other question of construction, this depends upon the language of the rule, construed against the relevant background. That involves a consideration of the immigration rules as a whole and the function which they serve in the administration of immigration policy.”

At para. 10 of Mahad, Lord Brown said:

“The Rules are not to be construed with all the strictness applicable to the construction of a statute or a statutory instrument but, instead, sensibly according to the natural and ordinary meaning of the words used, recognising that they are statements of the Secretary of State's administrative policy.”

Later in the same paragraph, Lord Brown accepted that central question was what the Secretary of State intended by making the rules, but clarified that:

“that intention is to be discerned objectively from the language used, not divined by reference to supposed policy considerations.”

Starting from first principles, the EUSS implements the EU Withdrawal Agreement. The Withdrawal Agreement is by its very nature a transitional agreement. It governs the UK’s transition from EU Member State to being a third country, from the perspectives of the EU and its Member States, the UK, and citizens of those countries and third countries.

The EUSS was intended to make provision to provide post-Brexit rights of residence for EU citizens and their family members, including durable partners. In some cases, the provision made by the EUSS goes beyond the minimum standards imposed by the Withdrawal Agreement.

Prior to the UK’s withdrawal from the EU, non-EU citizens in a “durable relationship, duly attested” with an EU citizen enjoyed relatively preferential rights to have their residence “facilitated” as a matter of domestic law, and the host Member State was obliged to undertake an extensive examination of their personal circumstances, and to justify any denial of entry or residence: see Art. 3(2)(b) of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (“the Directive”). In contrast to the rights of residence enjoyed by EU citizens and their non-EU family members under Article 2(2) and Articles 20 and 21 of the Treaty on the Functioning of the European Union, rights of residence (as opposed to mere facilitation) enjoyed by so-called “durable partners” were conferred by domestic law. The position was summarised in these terms in Celik v Secretary of State for the Home Department [2023] EWCA Civ 921at para. 13:

“Any right to reside [enjoyed by a durable partner] was granted by the Member State in accordance with its national legislation and the Member State had a wide discretion as to the factors to be taken into account in deciding whether to grant a right to reside to an extended family member. The criteria used had to be consistent with the normal meaning of ‘facilitate’ and ‘dependence’ and could not deprive them of effectiveness, and the individual was entitled to a judicial remedy to ensure that the national legislation remained within the limits set by the Directive.”

Durable partners and other extended family members are dealt with by Article 10(2) to (5) of the Withdrawal Agreement. The agreement addresses three scenarios involving durable partners:

There is at least one further durable partner scenario that is not addressed by the Withdrawal Agreement (“the fourth scenario”), namely where a third country durable partner resided lawfully in the UK at the conclusion of the implementation period on a basis other than as a durable partner, and later seeks leave to remain under the EUSS as a durable partner. It is hardly surprising the Withdrawal Agreement did not cover such persons; they were lawfully resident under the UK’s domestic immigration regime. Their UK-based residence was wholly outside the scope of EU law.

The fourth scenario is the category of residence captured by para. (aaa). As we have set out above, the “unless” in para. (aaa) means that those in a durable partnership at the end of the implementation period who had another lawful basis of stay, and so had no need to apply for their residence to be facilitated as a durable partner, will not be penalised for having failed to obtain a “relevant document” they did not need.

Article 10(4), addressing the third scenario identified above, sheds light on the approach of the agreement to putative durable partners who may hold a separate right of residence in their own capacity. It recognises and confirms that prospective durable partners may hold such a right of residence without prejudice to their potential status as a durable partner. It allows a prospective durable partner to choose to rely on the Article 10(4) facilitation route, or to pursue a (parallel) right of residence in their own capacity.

It is significant that Article 10(4) recognises that durable partners may have a right to residence in their own capacity and expressly preserves their ability to rely on such a right of residence. It is significant that the parties to the agreement recognised that a putative durable partner may legitimately have a right of residence in their own capacity, which may exist in parallel to any facilitation right that individual may in due course enjoy as a joining family member.

It is against that background that the EUSS, and para. (aaa) in particular, sought to make provision to address the position of durable partners. Para. (aaa) was intended to ensure that those who did not need to rely on the facilitation rights they enjoyed under Directive 2004/38/EC due to holding another lawful basis of stay would not be penalised for deciding not to rely on rights they did not need. As we have set out above, the Withdrawal Agreement makes clear that durable partners’ rights of residence under the agreement are not mutually exclusive with any other bases of stay the individual may have in his or her own right.

That approach may be contrasted with a person on immigration bail under Schedule 10. The power to grant immigration bail is engaged where a person is being detained under immigration powers, or is liable to be so detained. By definition, immigration detention powers are not engaged in relation to a person who is lawfully resident in the United Kingdom. As the editors of Macdonald’s Immigration Law and Practice, 10^th Ed., put it at para. 17.74, “In all cases where the Secretary of State or immigration officers have a power to detain, they also have a power to release.” Immigration bail powers are used to regulate the conditions under which a person is released from detention, or subject to non-detention based curtailment of their liberty, through the imposition of a range of conditions, such as reporting conditions, employment or work conditions, residence conditions, electronic monitoring conditions and others: see para. 2 to Schedule 10. Nothing in Schedule 10 supports the proposition that being subject to such conditions (and the imposition of a condition is a mandatory requirement of immigration bail: see Schd. 10, para. 2(1)) has the ability to convert a person’s presence in the UK to a lawful basis of stay.

We do not consider that the appellant is aided by the judgment of the Court of Appeal in SC, for the following reasons.

First, SC concerned temporary admission and not immigration bail.

Secondly, para. 276A(b) of the rules, to which Sir Ernest Ryder looked for assistance, has been revoked and is no longer in force”; at para. 56, Sir Ernest ascribed significance to the “internal consistency” of the use of the term in paras 276A(b) and 399A(a) of the rules as then in force.

Thirdly, the context in SC was a retrospective examination of the status of an appellant placed on temporary admission who was later granted indefinite leave to remain as a refugee, for the purposes of ascertaining the overall length of his “lawful residence”. Consistent with para. 276A(b) as then in force, SC’s time on temporary admission retrospectively acquired a quality it did not have at the time, by virtue of the subsequent regularisation of SC’s status. It was in that context that Sir Ernest Ryder held that SC’s residence on temporary admission was “lawful residence.”

The analysis in SC is therefore of no assistance to the appellant in these proceedings. The present issue is not whether the appellant’s overall length of residence may retrospectively be categorised as lawful, in light of a subsequent grant of leave. Unlike SC, there has been no grant of refugee status, nor other event capable of retrospectively changing the quality of his immigration bail status. The appellant remains on the immigration bail he was placed on when claiming asylum, a claim he has since withdrawn. The issue in this case concerns the quality of the appellant’s residence at a particular point in time, namely 11.00PM on 31 December 2020. That reflects the context and purpose of the EUSS. It is a transitional regime, concerned with rights and quality of residence at a particular point in time, for the purposes of determining the onward, post-Brexit immigration status of those within the scope of the Withdrawal Agreement and the EUSS.

In conclusion, we consider that “lawful basis of stay” in para. (aaa) does not include residence in the United Kingdom on immigration bail. That takes into account the language of the EUSS, the purpose and approach of the Withdrawal Agreement to comparable scenarios, other provisions of the Immigration Rules, the immigration bail regime and the circumstances under which liability to be placed on immigration bail is engaged, and the extracts of SC to which we were referred.