Poor drafting of Appendix EU criticised again by Court of Appeal

The Court of Appeal has once again asked the Home Office to please do something about the state of Appendix EU. The context this time was trying to understand what the rules say about the definition of a durable partner. The case is Mustaj v Secretary of State for the Home Department [2025] EWCA Civ 663.

I know you all like seeing the immigration rules receive judicial criticism (and this appendix in particular), so I have included the best bits in full below.

Background

The appellant is an Albanian national, Mr Mustaj, who was in a relationship with a Romanian national, Ms Todea. Ms Todea was granted pre-settled status under Appendix EU on 1 May 2020. The couple’s relationship started in November 2019 and they started living together in November 2020. They married in April 2021 and a few days later the appellant applied for pre-settled status.

That application was refused on 23 April 2021 on the grounds that Mr Mustaj was not the “durable partner” of Ms Todea at the end of the Brexit transition period on 31 December 2020. The appellant was unsuccessful in challenging the decision in the First-tier Tribunal and the Upper Tribunal.

The Court of Appeal

The definition of durable partner at the relevant time, as set out in Annex 1 of Appendix EU, was that the applicant must have been in a relationship akin to marriage or civil partnership for at least two years and the applicant must also hold a document confirming that they are a durable partner of the EEA citizen. This means that they must have applied to the Home Office and been granted the document.

An alternative to the need to hold that document was where the application under Appendix EU was made after the end of the transition period and the person:

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

The meaning of the above sub-paragraph (b)(ii)(bb)(aaa) was the issue that the Court of Appeal needed to decide. The Home Secretary’s position was that it sets out a limited exception to the strict requirement to hold the relevant document as a durable partner, and that this applies only where the applicant did not apply for the document earlier because they held another form of leave, for example as a student or worker. The appellant’s position was that he did meet this definition because the wording of (aaa) meant that those without a residence card and who were in the UK without leave could be a durable partner.

The Court of Appeal agreed with the Home Secretary’s position, as already upheld by the Upper Tribunal in the case of Hani (EUSS durable partners: para. (aaa)) [2024] UKUT 68 (IAC) (our write up is here). The appeal was dismissed.

Judicial criticism of the immigration rules

I am quoting these sections in full because I can’t imagine that I am the only one who finds it immensely validating to see the appalling Appendix EU described in this manner:

12. … My overall impression of Appendix EU is of a highly convoluted drafting approach that makes understanding it a real challenge for the most experienced lawyer, let alone for lay users.

13. In particular, most of Appendix EU is taken up with definitions. These occupy some 60 pages. Within that, not all of the definitions are set out in alphabetical order and many are very lengthy. As will be seen from what follows, there is a liberal use of paragraphs, sub-paragraphs, sub-sub-paragraphs and even sub-sub-sub-paragraphs, with roman numbers and letters to match. The text is even more difficult to understand if (as is the case with the current version that appears on the gov.uk website) the version used does not reflect the formatting, in particular the spacing and indentations, that appears in the original document produced by the Home Office and that is later reflected in archived versions, because those features are important to understanding what text qualifies what other text. Further, although defined terms are sometimes indicated by the use of bold text, we were told that this is only where the definition is first used, which is of no help to someone looking at a particular provision rather than attempting to read the entire document. In addition, the sheer length of the definitions section makes the absence of a hyperlink from each use of a defined term to the actual definition awkward.

14. These are all points of style and accessibility, albeit important ones. However, they would be less important if the quality of the drafting did not leave as much to be desired as it does. …

Underhill LJ also got stuck in, saying in the final paragraph of the decision that:

It is nevertheless important that the Courts should continue to draw attention to the problems caused by the standard of drafting in the Rules generally, and Appendix EU in particular. It is a fundamental aspect of the rule of law that individuals, or at least those advising them, should be able to understand the rules which govern their access to important rights. Equally seriously, poor drafting leads to mistaken decisions, which not only can cause injustice in individual cases but involve the waste of time, cost and other resources in avoidable litigation. I very much hope that the Secretary of State will not only proceed with the implementation of the Law Commission’s recommendations, which focus on questions of style and accessibility, but also consider what steps can be taken to ensure that the standard of drafting within the Home Office becomes more professional. It is fair to acknowledge that mistakes will sometimes occur in any complex piece of drafting; but experience suggests that mistakes much more frequently occur in the drafting of the Immigration Rules (and associated guidance) than in other forms of legislation.