[2024] UKUT 00068 (IAC)

This issue concerns the meaning of the requirement that a putative durable partner “did not otherwise have a lawful basis of stay in the UK and Islands for that period…”

Mr Georget’s case is that, by being placed on immigration bail in December 2020 (the precise date is unclear to us), the appellant’s “stay” in the UK acquired a lawful basis, and that, accordingly, he satisfied para. (aaa). He makes the following submissions.

First, Mr Georget accepts that the term “lawful basis of stay” is not defined in Annex 1 for the purposes of the EUSS, or elsewhere in the legislative and Immigration Rules landscape of the EUSS. In his submission, the term cannot simply be shorthand for holding leave to remain (or permission to stay) for otherwise that would have been the term used by the rules. Paragraph 6 of the Immigration Rules defines the term “permission to stay” as meaning leave to remain under the Immigration Act 1971; nothing in para. (aaa) seeks to rely on that terminology, or otherwise define the term. Adopting the approach in Mahad v Entry Clearance Officer [2009] UKSC 16, immigration bail is capable of amounting to a “lawful basis of stay”.

Secondly, where elsewhere the Immigration Rules deal with the issue of lawful residence, the concept is not simply equated with leave to remain. For example, at the time of the appellant’s application other provisions of the Immigration Rules then in force, namely para. 276A(b), treated periods spent on temporary admission as lawful residence, provided such periods were followed by a grant of leave. The Immigration Rules cannot be assumed to be internally incoherent or inconsistent, pursuant to Mahad.

Prior to its amendment on 6 April 2022, para. 276A(b) provided:

“‘lawful residence’ means residence which is continuous residence pursuant to:

(i)

existing leave to enter or remain; or

(ii)

temporary admission within section 11 of the 1971 Act where leave to enter or remain is subsequently granted”

Thirdly, in SC (Jamaica) v Secretary of State for the Home Department [2017] EWCA Civ 2112, Sir Ernest Ryder equated “lawful”, in the sense of “lawfully resident” under para. 399A of the Immigration Rules, with “permitted by law”: see para. 56. The appellant in those proceedings had been granted temporary admission upon his arrival in the UK, and held that status until he was later granted indefinite leave to remain as a refugee in line with his mother. The period for which SC was on temporary admission was held to count towards the periods for which he was regarded as being “lawfully resident” in the UK. The appellant’s residence on immigration bail, which has superseded temporary admission, should be treated in the same way.

Fourthly, the Secretary of State’s operational policy guidance EU Settlement Scheme: EU other EEA and Swiss citizens and their family members, Version 17.0 (relied which the Secretary of State relied upon at para. 1(g) of the grounds of appeal to the Upper Tribunal), supports the appellant’s case. At page 119 it gives the example of a migrant with leave as a student as having a lawful basis of stay. The significance lies in the fact that the example of the student is merely an example; the guidance does not seek to adopt the same restrictive approach as the Secretary of State.

In response, Mr Deller accepted that “lawful basis of stay” in para. (aaa) is not restricted to holding leave to remain. The concept would encompass, for example, those exempt from immigration control under section 8 of the Immigration Act 1971, such as the members of diplomatic missions. Mr Deller submitted that the fact that Appendix EU does not define the term does not mean that the concept may simply be imported from elsewhere in the rules. The reason for this aspect of para. (aaa) is relevant; its intention was to avoid those who did not need to obtain a relevant document as a durable partner because they had another lawful basis of stay were not subsequently exposed to unfairness through having not obtained a document they did not need at the time. It would be extraordinary, he submitted, if para. (aaa) treated those on immigration bail as having a “lawful basis of stay”, thereby enabling anyone who had claimed asylum and who was in a durable partnership on 31 December 2020 to regularise their stay on that basis.