[2024] UKUT 00068 (IAC)

Para. (aaa) of the definition to “durable partner” in Annex 1 of Appendix EU enables certain persons in a durable partnership to meet the definition of “durable partner” even where they did not hold a residence card in that capacity prior to the specified date of 31 December 2020 at 11.00PM. The appellant’s case is that the Secretary of State’s decision of 23 June 2021 is not in accordance with the “residence scheme immigration rules” (i.e., Appendix EU of the Immigration Rules: see section 17(1) of the EU Withdrawal Agreement Act 2020) for the purposes of regulation 8(3)(b) of the 2020 Regulations. On his case, because he was on immigration bail imposed in December 2020 at the specified date of 11.00PM on 31 December 2020, he otherwise had a “lawful basis of stay in the United Kingdom” for the purposes of para. (aaa), did not need a ”relevant document”, and accordingly met the definition of durable partner.

In the version relevant to these proceedings, para. (aaa) is engaged where an applicant:

“(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, 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…” (Emphasis added)

Put simply, Mr Georget’s case is as follows:

For the Secretary of State, Mr Deller agrees with point (a), above, but submits that immigration bail is incapable of amounting to a “lawful basis of stay” in the sense envisaged by para. (aaa). The appeal should be dismissed.