The Court of Appeal (CoA) heard an appeal concerning a deeply complex aspect of the EU Settlement Scheme (EUSS), specifically paragraph (b)(ii)(bb)(aaa) of the "durable partner" definition within Appendix EU to the Immigration Rules.
Background:
Mr. Fatjon Mustaj, an Albanian national, entered the UK illegally in 2017 and remained without leave. In November 2019, he began a relationship with Ms. Andrea Maria Todea, a Romanian national, who secured pre-settled status under the EUSS in May 2020. The couple moved in together in November 2020 and became engaged. They married on 3 April 2021. Just four days after their marriage, on 7 April 2021, Mr. Mustaj applied for limited leave to remain under the EUSS, an application that was refused on 23 April 2021.
Because the marriage took place after the closure of the transition period, namely 31 December 2020, Mr. Mustaj has to show that he was the "durable partner" of Ms. Todea at that time. The Secretary of State for the Home Department asserts that he did not meet this definition, a position upheld by both the First-tier Tribunal (FTT) and the Upper Tribunal (UT).
Decision:
The CoA dismissed the appeal, ruling that a person who had no lawful basis of stay in the UK cannot fall within paragraph (b)(ii)(bb)(aaa) in the definition of durable partner in Annex 1 to Appendix EU. The Secretary of State's interpretation of paragraph (aaa) as a narrow exception for those who could have applied for a relevant document but had an alternative lawful basis of stay was upheld as the correct interpretation.
The Court explicitly rejected Mr. Mustaj's argument that, because he did not hold a residence card and had no other lawful basis of stay, he positively met the criteria of paragraph (aaa).
Lady Justice Falk highlights the "highly convoluted" and "impenetrable" drafting of Appendix EU, particularly paragraph (aaa), which has been criticised by other tribunals.
Because the ruling on Ground 2 was decisive, it was not necessary to address Ground 1 of the appeal, which concerned whether the FTT erred in its factual finding that Mr. Mustaj was not in a durable relationship by 31 December 2020. However, Lady Justice Falk did offer two obiter dicta observations regarding Ground 1; first, the two-year cohabitation requirement for a durable relationship is not an essential prerequisite if "other significant evidence" of the relationship exists. Second, evidence of events post-31 December 2020 (such as marriage shortly thereafter) can be relevant and taken into account when assessing the durability of a relationship prior to and at that date, though it will not be determinative.
Implications:
This judgement definitively clarifies that individuals who were in the UK unlawfully before the specified date generally cannot qualify as "durable partners" under the EUSS by relying on this specific provision, even if they were genuinely in a durable relationship. This decision definitely closes off a potential pathway to regularise status via the EUSS. It also confirms a narrow interpretation of a key EUSS provision for unlawful residents, limiting their options.
Lady Justice Falk's observations, uttered though obiter dicta, provide valuable clarification on interpreting the "durable relationship" definition itself. She stresses that two years of cohabitation is not an absolute requirement if "other significant evidence of the durable relationship" exists. This means that any court's strict adherence to the two-year cohabitation rule can be challenged by sufficient evidence of a durable relationship.
