[2024] UKUT 00068 (IAC)

The following analysis is largely adopted from the reasoning in Basha.

The drafting of para. (b)(ii)(bb)(aaa) is complex. Particular confusion has arisen due to the “unless” clause towards the end of the paragraph. As set out above, on some constructions, the “unless” serves to benefit a person unlawfully present in the UK, as though it renders an applicant’s otherwise unlawful presence in the UK a positive attribute, and part of the criteria to be recognised as a durable partner.

Such a construction would lead to an absurdity. It would enable putative durable partners who would otherwise not enjoy any lawful immigration status to be able to rely on their unlawful presence as a means to regularise their stay. In our judgment, it is unlikely that the Secretary of State sought to introduce such a far-reaching amnesty through the drafting of para. (aaa). Properly understood, it cannot have that effect.

It is important to recall that, by definition, para. (b)(ii)(bb)(aaa) only applies to applicants who are or were in a durable relationship with a relevant EEA citizen: see paragraph (a) of the definition of “durable partner”. The analysis that follows therefore takes place on the footing that the existence of a durable relationship with an EEA sponsor is not in issue (as found by the judge in these proceedings). Merely being in a durable partnership with an EEA national does not render an applicant a “durable partner” for the purposes of Appendix EU, of course; that is the question the definition of “durable partner” goes onto address, and which we consider below.

Para. (b)(ii)(bb)(aaa) is in two halves, separated by the “unless”. The requirement imposed by the “first half” is as follows:

“the person…

(aaa) was not resident in the UK and Islands as the durable partner of a relevant EEA citizen (where that relevant EEA citizen is their relevant sponsor) on a basis which met the definition of ‘family member of a relevant EEA citizen’ in this table, or, as the case may be, as the durable partner of the qualifying British citizen, at (in either case) any time before the specified date…”

The “first half criteria”, as we shall call them, are relatively self-explanatory. The term “not resident… as” introduces a qualitative requirement for the applicant’s residence not to have been in a capacity which met the definition of a “family member of a relevant EEA citizen.” The “not” means that an applicant’s residence must not have been in that capacity in order to meet that criterion. It is hardly surprising that such residence must “not” have been on that basis, since para. (b)(i) addresses cases where an applicant’s residence was as a recognised durable partner, in possession of a relevant document.

Most third country applicants with no pre-specified date lawful basis of stay who marry an EEA sponsor after the specified date will meet the “first half criteria” with ease: by definition, they will not have been resident as the durable partner of a relevant EEA citizen or qualifying EEA citizen during the relevant period. On a straightforward reading an application of the “first half” of para. (aaa), therefore, most such applicants would succeed.

The first half criteria, taken in isolation, therefore cast the net very broadly: the criteria encompass those in a durable partnership who are unlawfully resident, on the one hand, and migrants with a lawful immigration status, on the other. For example, a student with leave to remain in the UK on that basis who is in a durable relationship with an EEA national without a relevant document would not have been:

“…resident in the UK and Islands as the durable partner of a relevant EEA citizen… on a basis which met the definition of ‘family member of a relevant EEA citizen…’”

It follows that the “first half criteria” are strikingly broad. But for an exception to their scope, most unlawfully resident putative durable partners would succeed under para. (aaa), even though (i) they were unlawfully resident at the relevant times; (ii) had not applied for their claimed durable partnership to be facilitated prior to the conclusion of the implementation period; and (if relevant) (iii) did not marry an EEA national until after the UK’s withdrawal from the EU was complete. That cannot have been the intention of the rules. It would lead to the absurdity identified above.

It is at this stage in the analysis that the “unless” enters the equation. It is a conjunction; it introduces an exception to the previous criteria, namely the otherwise very broad “first half criteria” in para. (aaa). In this connection we respectfully adopt para. 31 of Basha, which we quoted in part above, and now do so in full:

“The scope of the first half criteria is narrowed in the following way by the ‘unless’. If the ‘unless’ exception is engaged, the ‘first half’ criteria in paragraph (aaa) 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).”

We therefore turn to the “unless” criteria in the “second half” of para. (aaa). Understood against the above background, the “second half” criteria assume a significance and clarity which is not otherwise readily apparent.

The “second half” of para. (aaa) provides:

“…unless the reason why, in the former case, they were not so resident is that they did not hold a relevant document as the durable partner of a relevant EEA citizen for that period (where their relevant sponsor is that relevant EEA citizen) and they did not otherwise have a lawful basis of stay in the UK and Islands for that period”

Application of the “unless” requirement involves an examination of the reasons why an applicant ostensibly meets the first half criteria. It involves consideration of two factors, both of which must be present in order to disqualify an applicant from enjoying the otherwise broad benefit of the first half criteria in para. (aaa). The two “unless” requirements are as follows:

As to “did not hold a relevant document”, this criterion means that the applicant had not been issued with a relevant document, namely a residence card (or an EEA Family Permit) as a durable partner under the 2016 Regulations. The inclusion of this criterion underlines the centrality of holding a relevant document to an individual’s recognition as a durable partner under the regime under Article 3(2)(b) of Directive 2004/38/EC. The requirement to have held a relevant document reflects the nature of the facilitation duty to which the UK was subject under Article 3(2)(b) of Directive 2004/38/EC (both in its application to the UK as a Member State, and pursuant to the EU Withdrawal Agreement during the implementation period). The need to hold a relevant document as a durable partner flows from the fact that residence rights enjoyed by durable partners were those that were conferred by the host Member State following an extensive examination of the personal circumstances of an applicant, rather than existing as a matter of law pursuant to the EU Treaties or Directive 2004/38/EC. To enjoy a right to reside as a durable partner required a positive step on the part of the UK as the host Member State in the form of issuing a relevant document; the Withdrawal Agreement refers to holding a relevant document as residence being “facilitated”: see Art. 10(2).

Again, the class of persons who would not have been resident as a durable partner because they did not hold a document in that capacity would, in principle, be very broad. It would encompass unlawfully resident applicants, on the one hand, and a potentially limitless cadre of those holding leave to remain (or another form of right to reside), on the other.

The operative wording of the “unless” exception is therefore found in the final clause: “and they did not otherwise have a lawful basis of stay in the UK and Islands for that period…” This is the crucial wording that gives effect to the “unless” and avoids the otherwise absurd consequences that would result, but for the engagement of the exception. It requires an examination of the immigration status of the applicant at the relevant time. It is the means by which para. (aaa) distinguishes between applicants with no lawful basis of stay, on the one hand, and persons with a lawful basis of stay on some other basis, on the other.

A person with no lawful basis of stay at the relevant times is incapable of satisfying paragraph (aaa). By contrast, an applicant who held leave in some other capacity, for example as a student, would otherwise have had a lawful basis of stay in the UK.

There is a logic to this construction, which must reflect the intention of the EUSS and the Withdrawal Agreement. Those who enjoyed a lawful basis of stay will not be penalised for having failed to obtain a document they didn’t need. By contrast, those who did not hold a relevant document (nor applied for the facilitation of their relationship prior to the conclusion of the implementation period) yet were present unlawfully prior to the end of the implementation period and remain so unlawfully resident in the UK cannot regularise their status through the EUSS. That is entirely consistent with the Withdrawal Agreement, and the Immigration Rules drafted to give it effect.