Durable partner rules dumbfound the Upper Tribunal

It is not often you’ll see an Upper Tribunal judge simply concede defeat trying to understand what on earth the immigration rules mean, but this is exactly what happened in this unreported Appendix EU durable partner appeal. For those who have battled the complexities of Appendix EU, there is some relief in finding that members of the judiciary appear to experience the same feelings of dread on having to re-read the same Annex 1 definition for the umpteenth time.

This case is distinguished from Celik (see Iain’s excellent write up), as although the putative durable partner did not apply for an EEA Regulations documentation by 31 December 2020, they did hold immigration status at the end of the transition period and at the point they applied to the EUSS. The Home Office argued the absence of an EEA Regulations documentation was fatal. The First-Tier Tribunal disagreed and found the lawful status brought them under the Appendix EU definition of a durable partner. As an aside, the facts state the couple started living together in September 2020, demonstrating the appropriate flexibility towards durable relationships.

The Upper Tribunal found that there was no error of law in reaching this conclusion as quite understandably, the judge could not decipher the wording of the relevant clause. The judgment pointedly notes

it is reasonable for the Upper Tribunal to expect the Secretary of State, as represented in court, to be able to explain the meaning and effect of her own rules [18].

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After a valiant effort to work through the durable partner definition, the judge appears to have run out of gas and court time:

In the absence of detailed submissions, the Upper Tribunal would usually attempt a sensible interpretation of the rule from the plain wording. For the reasons given above, it is not possible to discern the meaning or application of paragraph (b)(ii)(bb)(aaa) with any confidence. [23]

Unfortunately, whilst the short judgement contains many quotable lines on the joys of Appendix EU, the case does not settle the confusion about in-country durable partner applications in cases where the applicant holds immigration status at the crucial junctures. There seems little point in the Home Office opposing in-country applications from genuine durable partners where the sponsored party has lawful residence in the UK. Despite opposing this appeal, the Home Office policy team appears to agree that they should qualify as they say in this (third paragraph) correspondence to the3million.