United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2022-003942
	First-tier Tribunal No: EA/01451/2022

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 24 March 2025

 

Before

 

UPPER TRIBUNAL JUDGE LANDES

DEPUTY UPPER TRIBUNAL JUDGE RICHARDS

 

Between

 

ABDELMOUMENE SOUICI

(No anonymity order made)

Appellant

and

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: In person, assisted by Mrs Djebbar

For the Respondent: Ms Cunha (Senior Home Office Presenting Officer)

 

Heard at Field House on 29 January 2025

 

 

DECISION AND REASONS

 

1.              For ease of reference in this decision I refer below to the appellant as Mr Souici and to the respondent as SSHD.

2.              This is the remaking, under section 12 (2) (b) (ii) of the Tribunals, Courts and Enforcement Act 2007 of the decision of the First-Tier Tribunal promulgated on 26 May 2022 allowing Mr Souici's appeal against the SSHD's decision of 27 October 2021 refusing Mr Souci's application of 2 March 2021 for status under the EU Settlement Scheme as the durable partner of Mrs Djebbar, an EEA national. This remaking follows the setting aside of the First-Tier Tribunal decision for material error of law by Upper Tribunal Judge McWilliam (see annexe below) in a decision and reasons issued on 8 March 2023. Upper Tribunal Judge McWilliam then stayed the remaking hearing pending the judgment of the Court of Appeal in Celik (EU exit; marriage; human rights) [2023] EWCA Civ 921 which was handed down on 31 July 2023.

The hearing

3.              Although representatives were on the record for Mr Souici, he clarified to us that he no longer had representatives. We noted that he did not have legal representation at the hearing before Upper Tribunal Judge Lane on 2 September 2024 when the appeal was adjourned.

4.              Mr Souici had sent to the Upper Tribunal recent letters from his brother, his sister-in-law and two nieces supporting him and referring to their being a close-knit family and the role he and Mrs Djebbar played in their lives. We showed these letters to Ms Cunha who had not received a copy, and said that we were raising with her whether the SSHD would consent to the new matter of Mr Souici's family and private life in the UK being raised.

 

5.              Ms Cunha refused consent and explained to Mr Souici and Mrs Djebbar that the application he had made which was under appeal was for status under the EU Settlement Scheme set up specifically to preserve the rights of EU nationals and their family members after Brexit. She explained that it was fairer to all concerned to require family and private life to be raised by way of a separate application to the Home Office when all relevant matters could be raised and properly considered.

 

6.              We explained to Mr Souici and Mrs Djebbar that we could only consider whether Mr Souici succeeded under the EU Settlement Scheme.

 

7.              Mrs Djebbar said that she would speak for Mr Souici, and we allowed her to do so. She said that there was an issue about producing a document, but they now had completed their civil partnership in January 2022 and had the document to prove it. They had been married in an Islamic marriage in August 2018, 2 years before Brexit, and their relationship had continued until now. They had given notice to the register office before 31 December 2020 but they had to wait their turn because of Covid which was why they were not able to enter into a civil partnership until after their application to the SSHD in 2021 (the documents show that they were given the first available date in June 2021 which sadly had to be further postponed because of family illness).

 

8.              We explained briefly to Mr Souici and Mrs Djebbar as we set out below why being in a durable partnership before Brexit, yet not having had that relationship accepted by the SSHD by issue of a residence card, was a different status from being in a marriage or civil partnership recognised by the civil law of England and Wales. We explained that the Court of Appeal had decided that it was compliant with the Withdrawal Agreement between the UK and the EU for the SSHD to say that she would not grant status under the EU Settlement Scheme to those who entered into marriage or a civil partnership after 31 December 2020 and had not before that either had or applied for a residence card as a durable partner. We said that the Court of Appeal had decided that it did not make any difference if the couple had tried their best to marry/enter into a civil partnership before 31 December 2020 but had been unable to do so because of COVID and the backlogs at the register offices. We said that the only point was, as had been identified, what was called the "(aaa) clause" point assisted Mr Souici, that is whether the EU Settlement Scheme rules at the relevant time had been drafted by SSHD so that they did not in fact require durable partners to have had or have applied for a residence card before 31 December 2020 in order to acquire status.

9.              We said to Mr Souici and Mrs Djebbar that when they were represented, their lawyers had set out detailed argument on the aaa clause. The SSHD had also set out argument and there was now a reported decision from the Upper Tribunal on the point although we were aware that a case was going to the Court of Appeal on the issue. Having considered the argument of their lawyers, we agreed with SSHD that the rules as drafted required those in the position of Mr Souici to have a "relevant document" which in his case would have been a residence card under the EEA regulations - an Islamic marriage certificate and/or 2022 civil partnership certificate would not be sufficient, neither would other proof that the couple were, in fact, in a durable relationship as at 31 December 2020.

10.          We told Mr Souici that meant that on remaking we would be dismissing his appeal. We explained that this did not prevent his applying to the SSHD for permission to stay under other immigration rules or human rights provisions as the civil partner of Mrs Djebbar and if he did that the SSHD would make a decision applying the general family life provisions of immigration rules.

11.          We set out below our reasons for dismissing Mr Souici's appeal.

Reasons

12.          Mr Souici's right of appeal arises under regulation 3 (1) (c) of the Immigration (Citizens' Rights Appeals) (EU Exit) Regulations 2020 ("the appeal regulations") against SSHD's decision not to grant him leave to remain in the UK under the EU Settlement Scheme. Under regulation 8 of the appeals regulations there are 2 grounds of appeal, the first ground that the decision breaches any right which the appellant has by virtue of relevant parts of the Withdrawal Agreement and the second ground that it is not in accordance with residence scheme immigration rules, i.e. Appendix EU of the Immigration Rules which relates to the EU Settlement Scheme.

13.          Under regulations 9 (4) and (5) of the appeal regulations, whilst the tribunal can consider any matter relevant to the substance of the decision appealed against, it cannot consider a "new matter" without the consent of SSHD. A "new matter" is defined by regulation 9 (6) as a matter constituting a ground of appeal either under the appeals regulations or under section 84 of the Nationality, Immigration and Asylum Act 2002, and SSHD has not previously considered the matter in the context of the decision appealed against. The contention that Mr Souici should be able to remain in the UK on general family and private life grounds, is a "new matter" as SSHD just considered Mr Souici's rights under the EU Settlement Scheme when making her decision, and as SSHD through Ms Cunha, has refused consent to us considering the matter, we cannot consider it.

14.          We turn therefore to whether the decision breaches Mr Souici's rights under the Withdrawal Agreement.

15.          Article 10 of the Withdrawal Agreement sets out amongst other things which family members of EU citizens who lived in the UK before 31 December 2020 are in scope of the Withdrawal Agreement. The only part which could potentially apply to Mr Souici is Article 10 (1) (e) (i) if he could be seen as the family member of an EU citizen, a family member who resided in the UK in accordance with Union law before 31 December 2020. "Family members" are defined in accordance with the Free Movement Directive. For the purpose of Article 2 of the Free Movement Directive partners are only "family members" if they are spouses or civil partners. Mr Souici has been the civil partner of Mrs Djebbar since early 2022 but that was after 31 December 2020. The Court of Appeal in the case of Celik and Secretary of State for the Home Department [2023] EWCA Civ 921 explained at [54] that on the ordinary meaning of the words in Article 10 (1) (e) (i) read in context and having regard to the purpose underlying the Withdrawal Agreement, persons who married (or entered into a civil partnership) after 31 December 2020 did not fall within the scope of that provision even if they could not marry or enter into a civil partnership until after that date [55]. We appreciate that Mr Souici was married in an Islamic marriage to Mrs Djebbar, but that was not a marriage recognised under the law of England and Wales and did not give Mr Souici the status of spouse or civil partner.

16.          Mr Souici and Mrs Djebbar were partners in a durable relationship before 31 December 2020. Article 3 (2) (b) of the Free Movement Directive provided that the host Member State should, in accordance with national legislation, facilitate entry and residence for a partner with whom a Union citizen had a duly attested durable relationship. Article 10 (2) of the Withdrawal Agreement brings within scope of the Withdrawal Agreement partners coming within Article 3 (2) (b) whose residence was facilitated by the Host State in accordance with national legislation before 31 December 2020. Article 10 (3) of the Withdrawal Agreement brings within scope of the Withdrawal Agreement those partners coming within Article (3) (2) (b) who had applied for facilitation of entry and residence before 31 December 2020 and whose residence was being facilitated by the Host State in accordance with its national legislation thereafter. However, as Celik explained, to come within scope of those provisions, the partner had to have made the relevant application to SSHD before 31 December 2020. Before 31 December 2020, those living in the UK as durable partners of EU citizens exercising free movement rights were able to apply to SSHD for a residence card under the EEA regulations. Mr Souici did not make an application before 31 December 2020 as a durable partner and so he does not come within the scope of Articles 10 (2) or (3) of the Withdrawal Agreement.

17.          There is no other way on the facts Mr Souici could even potentially come within scope of the Withdrawal Agreement and so the decision is not in breach of the Withdrawal Agreement as Mr Souici is not within scope.

18.          We next consider whether the decision is in breach of the relevant rules of Appendix EU. To qualify as a "family member of a relevant EEA citizen" under Appendix EU a partner must either be the spouse or civil partner of the EEA citizen with the marriage or civil partnership contracted before 31 December 2020, or be at the date of application the spouse/civil partner but were formerly a "durable partner" of the EEA citizen before 31 December 2020, or be at the date of application and were before 31 December 2020, a "durable partner" of the EEA citizen.

19.          Under Appendix EU as it was in force at the date of application and decision, "durable partner" was defined as follows:

 

"(a) the person is, or (as the case may be) for the relevant period was, in a durable relationship with a relevant EEA citizen (or, as the case may be, with a qualifying British citizen or with a relevant sponsor), with the couple having lived together in a relationship akin to a marriage or civil

partnership for at least two years (unless there is other significant evidence of the durable relationship); and

(b)(i) the person holds a relevant document as the durable partner of the relevant EEA citizen (or, as the case may be, of the qualifying British citizen or of the relevant sponsor) for the period of residence relied upon; for the purposes of this provision, where the person applies for a relevant document

(as described in sub-paragraph (a)(i)(aa) or (a)(ii) of that entry in this table) as the durable partner of the relevant EEA citizen or, as the case may be, of the qualifying British citizen before the specified date and their relevant document is issued on that basis after the specified date, they are deemed to have held the relevant document since immediately before the specified date; or

(ii) where the person is applying as the durable partner of a relevant sponsor (or, as the case may be, of a qualifying British citizen), or as the spouse or civil partner of a relevant sponsor (as described in sub-paragraph (a)(i)(bb) of the entry for 'joining family member of a relevant sponsor' in this table), and does not hold a document of the type to which sub-paragraph (b)(i) above applies, and where:

(aa) the date of application is after the specified date;

and

(bb) 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, 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...."

 

20.          A relevant document was defined in Appendix EU at the relevant time as a family permit or residence card issued by the UK under the EEA regulations. Mr Souici did not have such a document and had not applied for one.

21.          As can be seen from the definition above a person can qualify as a durable partner if they hold a document (see (a) (b) (i)) but they can also apply if they do not hold a document (see (a) (b) (ii)) as long as they can bring themselves within (aaa). SSHD says that (aaa) is to cater for those who were durable partners, did not hold a relevant document but had another lawful basis of stay (for example were in the UK with leave say as a student). The rationale for that is that those who were in the UK with leave before 31 December 2020 but happened also to be the durable partners of an EEA citizen would not have needed to obtain a residence card under the EEA regulations because they were in the UK perfectly lawfully. Anyone without leave who had not applied for a residence card was not living lawfully in the UK. The definition of durable partner has now been amended; (aaa) has been tidied up so it is easier to read and it is now clear that the intention of SSHD was that it was only where an undocumented partner had another lawful basis of stay in the UK before the end of the transition period that they can rely on that period of residence. The explanatory memorandum to the statement of changes in immigration rules clarifies that was always the intent.

22.          When Mr Souici was represented, his lawyers filed a skeleton argument and a rule 24 response in which the (aaa) argument was considered. Some of the general arguments are no longer available due to the decision of the Court of Appeal in Celik. The argument that remains is that Mr Souici meets (aaa) as he was not resident on a basis which met the definition but the reason he was not so resident was that he did not hold a relevant document. He also did not otherwise have a lawful basis of stay. It is said that this is the correct reading of (aaa). It is said that this is consistent with SSHD's guidance which refers to a durable partner showing evidence if they do not have a relevant document.

 

23.          The point about SSHD's guidance is misconceived. The part about a durable partner not having a relevant document appears to be directed specifically at durable partners of persons of Northern Ireland who are in a different category because of the provisions of the Good Friday Agreement.

 

24.          The Upper Tribunal in the case of Hani (EUSS durable partners: para. (aaa)) [2024] UKUT 68 explained that if the "unless" exception of the (aaa) clause is engaged then the route to qualify as a durable partner falls away. This makes perfect sense as an interpretation. It means that those who were not resident as durable partners (because for example they were students) can qualify without a residence card. However, if the only basis for not being resident as a durable partner was because there was no residence card and there was no other lawful basis of stay then the exception is engaged, and the person cannot qualify. On the reading put forward by the appellant's lawyers there would be little point to (a) (b) (i). There would be no need to have a residence card to qualify, indeed the only people who would not qualify were people who did not have a residence card, but had some other type of leave. This makes no sense. As the Upper Tribunal said in Hani the construction contended for by SSHD is a logical one. Those who were lawfully here did not need to have a residence card and so are not penalised for not having one. Those who did not have a residence card and had not applied for one before 31 December 2020 and were present unlawfully in the UK could not regularise their status through the EUSS after the end of the transition period. That is consistent with the Withdrawal Agreement.

25.          As Mr Souici did not have a residence card and had no lawful basis of stay at the relevant time the decision is compliant with immigration rules.

26.          As the decision does not breach immigration rules or the Withdrawal Agreement, on remaking Mr Souici's appeal is dismissed and SSHD's decision of 27 October 2021 is affirmed. As set out above, if Mr Souici wishes to remain in the UK, he will need to make an application to SSHD that does not rely on Appendix EU and the EU Settlement Scheme.

Notice of Decision

 

Mr Souici's appeal is dismissed.

 

 

A-R Landes

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

 

17 March 2025

 

 

IN THE UPPER TRIBUNAL MMIGRATION AND ASYLUM CHAMBER	Case No: UI-2022-003942
	First-tier Tribunal No: EA/01451/2022

 

THE IMMIGRATION ACTS

 

Decision & Reasons Issued:

 

.......................................

 

Before

 

UPPER TRIBUNAL JUDGE MCWILLIAM

 

Between

 

Secretary of State for the Home Department

Appellant

and

 

Abdelmoumene Souici

(NO ANONYMITY ORDER MADE)

Respondent

 

Representation :

For the Appellant/SSHD: Mr S Walker, Home Office Presenting Officer

For the Respondent: Mr B Hawkin, Counsel instructed by BMAP Law

 

Heard at Field House on 26 January 2023

 

 

DECISION AND REASONS

1.                    I shall refer to the Respondent as the Appellant as he was before the First-tier Tribunal. He is a citizen of Algeria. His date of birth is 29 July 1985.

2.                    On 21 June 2022 the First-tier Tribunal (Judge Parkes) granted the SSHD permission to appeal against the decision of the First-tier Tribunal (Judge Louveax) to allow the Appellant's appeal against the decision of the SSHD on 27 October 2021 refusing the Appellant's application made on 2 March 2021 under the EU Settlement Scheme (EUSS) as a durable partner of an EEA national residing in the UK.

3.                    The First-tier Tribunal did not hear evidence. The matter proceeded by way of submissions. The judge made findings at paragraphs 15 - 27. The judge found that the Appellant is not a durable partner as defined in Appendix EU. While it was not in dispute that the Appellant and the Sponsor were in a relationship, the Appellant did not hold a relevant document and he made not made an application for one under the Immigration (European Economic Area) Regulations 2016 before 31 December 2020. The Appellant and the Sponsor intended to marry before 31 st December 2020 but were unable to do so through no fault of their own.

4.                    The judge stated as follows:

"20. However, the Appellant made his application whilst Regulation 8 of the EEA Regulations 2016 was still in force.

21.                                The EEA Regulations 2016 were revoked with effect from 11pm on 31 December 2020 by the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020. However, Regulation 3 of The Citizens' Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020 provides for a grace period under which various of the EEA Regulations 2016 continued to have effect up until 30 June 2021 inclusive; by virtue of Regulation 5(g) of The Citizens' Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020, that includes Regulation 8 of the EEA Regulations 2016 (with modifications).

22.                                EEA Family Permits ceased to be valid after 30 June 2021. However, as stated in the Respondent's policy document entitled 'EU Settlement Scheme Family Permit and Travel Permit - Version 10.0', dated 1 November 2021, the Respondent's policy is to nevertheless issue a 'product' (i.e., an EU Settlement Scheme Family Permit) to all those whose EEA family permit applications were successful, including on appeal.

23.                                Article 18(1)(o) of the Withdrawal Agreement imposes a duty on the Respondent to help applicants prove their eligibility and avoid any errors or omissions in their applications and a duty to give applicants the opportunity to furnish supplementary evidence and to correct any deficiencies, errors or omissions.

24.                                I find that such duty is all the greater given how impenetrable Appendix EU is to even lawyers working in this field.

25.                                Given that, the Respondent is and was plainly of the view that the Appellant did not and could not meet the requirements of the EU Settlement Scheme but could, arguably, meet the requirements of Regulation 8 of the EEA Regulations 2016, I find that the Respondent was under a duty to contact the Appellant to notify him of that fact and either deal with his application as if it had been made under the EEA Regulations 2016 or given the Appellant the opportunity to re-submit the application under the EEA Regulations 2016.

26.                                The Respondent's clear failure to do so is a breach of the Appellant's rights under Article 18(1)(o) of the Withdrawal Agreement.

27.                                Accordingly, the appeal is allowed. It remains for the Respondent to consider the Appellant's application of 26 May 2021 under the EEA Regulations 2016."

5.                    The SSHD's grounds of appeal in summary contend that the judge erred in allowing the appeal under the 2016 Regulations when the application had been made under the EUSS. It is asserted that the judge erred when concluding that the SSHD should have notified the Appellant in order for her him to make an application under the 2016 Regulations. Moreover the Appellant did not come within the scope of the Withdrawal Agreement.

6.                    Mr Hawkin relied on a Rule 24 response which had been given to Mr Walker on the morning of the hearing. Mr Hawkin's response to the grounds was twofold:

1.     The judge allowed the appeal under the Withdrawal Agreement and was entitled to pursuant to Article 18 (o) of the same.

2.     In any event, the judge erred in concluding that the appellant is excluded from qualifying under para (b) (ii) (aaa) of Annex 1 to appendix EU ( "the aaa point").

7.                    Mr Walker in response said that he relied on the SSHD's grounds and Celik. He did not engage with the discrete issues raised on the Appellant's Rule 24 response.

Error of Law

8.                    The facts of this case are on all fours with Celik (EU exit; marriage; human rights) [2022] UKUT 00220.

9.                    Applying the law, as it stands, the Withdrawal Agreement has no application in this case for the reasons identified and set out by the panel in Celik at paras 50 -53. I take into account what the panel said at para 62, but this does not assist this Appellant. Moreover, the duty that the judge says at [25] falls on the SSHD is difficult to square with the duty set out in 18 (o). Moreover, there is no support for the SSHD having any obligation to consider the decision under a different regime that no longer applies. I note that the SSHD had not reached any conclusions about the durability of the relationship. There is a material error of law in the decision of the First-tier Tribunal. I set aside the decision to allow the Appellant's appeal.

10.                In the light of the Court of Appeal granting permission in Celik, the resumed hearing is stayed pending the Court of Appeal's judgement.

Directions

I make the following direction: -

i.                     Not later that 14 days after the decision by the Court of Appeal in Celik is promulgated, the parties are to serve and file written submissions. I have set the decision aside in its entirety to enable the parties to engage with the aaa point.

 

 

Joanna McWilliam

 

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

8 March 2023