Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

Case No: UI- UI-2022-002997

First-tier Tribunal No: EA/13320/2021

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 28 April 2023

Before

UPPER TRIBUNAL JUDGE RINTOUL
UPPER TRIBUNAL JUDGE LESLEY SMITH

Between

MR AHTSHAM ALI
(NO ANONYMITY DIRECTION MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr R Solomon, Counsel instructed by MHS Solicitors
For the Respondent: Mr C Avery, Senior Home Office Presenting Officer

Heard at Field House on 16 March 2023

DECISION AND REASONS
BACKGROUND
1. By a decision promulgated on 9 December 2022, the Tribunal (UTJ Smith and DUTJ Cotton) found there to be an error of law in the decision of First-tier Tribunal Judge Chana itself promulgated on 21 March 2022. By her decision, Judge Chana allowed the Appellant’s appeal against the Respondent’s decision dated 6 September 2021 which refused the Appellant settled status under the EU Settlement Scheme (“EUSS”) and instead granted him pre-settled status. The Tribunal’s error of law decision is appended to this decision for ease of reference.
2. In consequence of its decision, the Tribunal set aside Judge Chana’s decision and gave directions for a resumed hearing before a panel of this Tribunal. So it is that the appeal comes back before us in order to re-make the decision.
3. The facts in this appeal are agreed so far as necessary. For that reason, we did not need to hear evidence. The full factual history is set out in the Respondent’s skeleton argument and is not disputed by the Appellant. We do not need to repeat that. The facts relevant to our consideration are as follows:
17 April 2016: Appellant married his second EEA partner in an Islamic ceremony. It is common ground that an Islamic marriage is not recognised as legally valid in the UK.
8 June 2016: The Appellant’s child was born.
6 October 2017: An application for leave to remain under the Immigration Rules (“the Rules”) was made. The Appellant was granted 30 months leave to remain under Gen 3.2 of Appendix FM to the Rules (“Article 8 leave”) expiring on 6 October 2020 based on his relationship with his partner and child. Although his partner is an EEA national, she is settled in the UK.
30 December 2020: The Appellant having been refused permanent residence under the Immigration (European Economic Area) Regulations 2016 (“the EEA Regulations”) and having had an application under the EUSS also refused, applied for a residence card under the EEA Regulations.
23 March 2021: Appellant issued with a residence card as a durable partner valid to 30 June 2021.
1 June 2021: Application for settlement under EUSS.
6 September 2021: Pre-settled status granted but settled status refused.
4. In its error of law decision, the Tribunal directed that both parties file a skeleton argument setting out their analysis of the legal position. The Appellant served a skeleton argument on 29 December 2022 (later filed by the Respondent as it was not received by the Tribunal). The Respondent’s skeleton argument was filed on 7 February 2023. The skeleton arguments were drafted by Guy Davison of Counsel and Zoe Young on behalf of the Respondent but adopted by the representatives before us.
5. Having heard oral submissions from Mr Solomon and Mr Avery, we indicated that we intended to reserve our decision and issue that in writing which we now turn to do.

DISCUSSION
6. As explained at [9] of the error of law decision, paragraph EU11 of Appendix EU to the Rules states that a family member of a relevant EEA citizen will be granted indefinite leave to remain where one of seven conditions is met. Condition 3 requires an applicant to have completed a continuous qualifying period of five years as the family member of a relevant EEA citizen. A “family member of a relevant EEA citizen” is defined as including a durable partner where the partnership was formed before the specified date (11pm on 31 December 2020) and where that remains durable at date of application. In order to satisfy the definition of a “durable partner”, the relationship has to have endured for at least two years and the non-EEA national partner has to hold a relevant document as a durable partner for the period of residence on which he/she relies. The Appellant has only held a residence card since 23 March 2021 and therefore could not satisfy the five-year period as at date of application, date of decision or even now. The Appellant does not therefore seek to argue that he is able to meet the Rules. Thus the ground of appeal that the Respondent’s decision is not in accordance with Appendix EU falls away.
7. The second ground available to the Appellant is that the Respondent’s decision is contrary to the agreement between the UK and EU on the withdrawal of the UK from the European Union (“the Withdrawal Agreement”). Although the focus of the Appellant’s skeleton argument is on a specific provision and the judgment of Lane J in R (on the application of The Independent Monitoring Authority for the Citizens’ Rights Agreements) v Secretary of State for the Home Department [2022] EWHC 3274 (Admin) (“Citizens’ Rights”), Mr Solomon expanded the Appellant’s case in oral submissions to refer to other provisions of the Withdrawal Agreement. He did so without objection from Mr Avery. We accept that the provisions relied upon are relevant to our consideration whether the Respondent’s decision accords with the Withdrawal Agreement.
8. We begin with Article 10 of the Withdrawal Agreement which reads as follows so far as relevant:
“Article 10
Personal scope
…
2. Persons falling under points (a) and (b) of Article 3(2) of Directive 2004/38/EC whose residence was facilitated by the host State in accordance with its national legislation before the end of the transition period in accordance with Article 3(2) of that Directive shall retain their right of residence in the host State in accordance with this Part, provided that they continue to reside in the host State thereafter.
3. Paragraph 2 shall also apply to persons falling under points (a) and (b) of Article 3(2) of Directive 2004/38/EC who have applied for facilitation of entry and residence before the end of the transition period, and whose residence is facilitated by the host State in accordance with its national legislation thereafter.”
9. We accept that the Appellant falls within Article 10(3). His application under the EEA Regulations for facilitation was made on 30 December 2020 and his residence was facilitated on 23 March 2021.
10. That then is relevant to the right of permanent residence under Article 15 of the Withdrawal Agreement which reads as follows so far as relevant:
“Article 15
Right of permanent residence
1. Union citizens and United Kingdom nationals, and their respective family members who have resided legally in the host State in accordance with Union law for a continuous period of 5 years ….shall have the right to reside permanently in the host State under the conditions set out in Articles 16, 17 and 18 of Directive 2004/38/EC. Periods of legal residence or work in accordance with Union law before and after the end of the transition period shall be included in the calculation of the qualifying period necessary for acquisition of the right of permanent residence.
…”
[our emphasis]
11. Mr Solomon submitted that, in this case, the five-year period required under the Withdrawal Agreement should begin at the latest from 2017 when the Appellant was granted Article 8 leave. He submitted that the subsequent applications under the EUSS, then the EEA Regulations and finally the application which led to the decision under appeal were all applications for the variation of the leave which the Appellant held from that time and accordingly he had completed five years at the current date.
12. The difficulty with that argument is that none of the period prior to 23 March 2021 was “in accordance with Union law”. At [8] of the error of law decision, the Tribunal drew attention to the case of Secretary of State for the Home Department v Aibangbee [2019] EWCA Civ 339 (“Aibangbee”) on which the Respondent relied at the error of law stage as authority for the proposition that in order to be recognised as a “family member” of an EEA national under Directive 2004/38/EC, a durable partner’s residence has first to be facilitated by the EU member state. Although the Court of Appeal was there dealing with rights under the EEA Regulations (and in fact the EEA Regulations 2006), the submission set out at [20] of the judgment reflects the proposition for which the Respondent contends:
“In his written skeleton argument, Mr Irwin relied on Secretary of State for the Home Department v Ojo [2015] EWCA Civ 1301 for the proposition that residence ‘in accordance with’ the 2006 Regulations for the purposes of regulation 15(1)(b) was legal residence in the United Kingdom in a qualifying status. He submitted that an extended family member had the relevant qualifying status only when that person fell to be treated as a family member pursuant to regulation 7(3), which was dependent in turn on the issue of a residence card under regulation 17(4). In his oral submissions, however, Mr Irwin found it unnecessary to develop the argument based on Ojo. He relied instead on the recent decision of this court in Macastena v Secretary of State for the Home Department [2018] EWCA Civ 1558, [2019] 1 WLR 365 (‘Macastena’) as establishing that a period of residence by an extended family member prior to the issue of a residence card does not count towards the period of five years' residence required by regulation 15(1)(b).”
13. The rival submission that permanent residence should begin with the point in time when the durable relationship is accepted to have been formed is recorded at [22] of the judgment. The Court of Appeal accepted the Respondent’s case in this regard (see [23] of the judgment). As summarised at [34] of the judgment “an extended family member acquires a right of permanent residence under regulation 15(1)(b) only if he has resided in the United Kingdom with the relevant EEA national for a continuous period of five years since being issued with a residence card” [emphasis as in the original].
14. Aibangbee is of course binding on us. Whilst we recognise that the Court of Appeal was there dealing with the provisions of the EEA Regulations (2006), those regulations were accepted as reflecting the position of extended family members in EU law under Directive 2004/38/EC. To persuade us to depart from that judgment, therefore, Mr Solomon would need to demonstrate that the position under the Withdrawal Agreement has altered EU law or that the UK has agreed to a more generous position for those in the Appellant’s position. Otherwise, since Article 15 requires a family member of an EEA national to have resided in the UK “in accordance with Union law”, the Appellant can rely only on the period after his residence as a family member was facilitated by the Respondent, that is to say from 23 March 2021.
15. The first submission which Mr Solomon made in that regard was that “Union law” includes the European Convention on Human Rights. Mr Solomon submits that, as the Appellant was given leave to remain based on his Article 8 ECHR rights, he was therefore resident “in accordance with Union law” under the Withdrawal Agreement from the grant of leave to remain in 2017.
16. The difficulty with that argument is that “Union law” is one of the terms defined by Article 2 of the Withdrawal Agreement. We took Mr Solomon through that definition. He accepted that the ECHR does not form part of “Union law” as there defined.
17. Mr Solomon also relied on Article 18 of the Withdrawal Agreement and the Citizens’ Rights judgment. This is the argument foreshadowed in the Appellant’s skeleton argument. In essence, the Appellant argues by reference to [177] to [179] and [193] of the judgment that there is a requirement for finality under the EUSS which permits only of a single application. He therefore contends that Article 18 requires only a single application and that “[a] grant of pre-settled status and the need to make a further application to obtain permanent/settled status is not compatible with the intended purpose of the Withdrawal Agreement”. It is submitted that, the Appellant having lived with his EEA national partner for five years, “could have” been granted settled status when he made “the one allowable application” so that “the requirement to hold a residence card for the requisite period ought to have been waived/overlooked” ([15] of the Appellant’s skeleton argument).
18. There are a number of difficulties with those submissions.
19. First, the issue is not whether the Respondent “could have” waived a requirement but whether she was obliged to do so. Unless the Withdrawal Agreement required her to do so, her decision is not contrary to that agreement.
20. Second, in order to demonstrate that she was required to do so, the Appellant would have to show that this is what Article 18 of the Withdrawal Agreement (as interpreted in the Citizens’ Rights judgment) requires.
21. Taking first the Citizens’ Rights judgment, that has nothing to say about the Appellant’s position for the following reasons.
22. First, the judgment is mainly concerned with the position of EEA nationals and their family members ([16]). It has little if anything to say about the position of extended family members.
23. Second, even in relation to EEA nationals and their family members, Lane J did not conclude that such an applicant has to be granted permanent residence (or settled status) from the outset. The argument for the claimant in that case was that when making the single application permitted by the Withdrawal Agreement, the EEA national or family member was entitled to the “rights of residence conferred by Article 13 and the contingent right to acquire the permanent right of residence in accordance with Article 15”. The position of the European Commission (as one of the interveners in the case) as recorded at [88] of the judgment was that the rights conferred by the Withdrawal Agreement would depend on the personal situation of the applicant. So, although “one beneficiary may have a non-permanent right of residence at the moment of conferral, whilst another may have already acquired the right of permanent residence” both would have status under the Withdrawal Agreement. It was not part of the claimant’s or intervener’s case that all those applying for status would be entitled to permanent residence (or settled status) from the outset.
24. Lane J recognised the distinction between the constitutive scheme under the Withdrawal Agreement for which the UK has opted when enacting the EUSS as opposed to the declaratory scheme which some other EU member states have adopted. He recognised at [174] that there might be a difference based on that distinction in the way in which rights were acquired. However, on analysis of the constitutive scheme for which provision is made in the Withdrawal Agreement, he accepted the claimant’s and intervener’s argument that Article 18 of the Withdrawal Agreement makes provision for only one single application. That is the point being made at [177] to [179] of the judgment on which the Appellant relies. As is patently clear from the paragraphs which follow, Lane J was simply making the point that an applicant who obtains pre-settled status cannot be required to make a further application for settled status at the end of the five years’ period ([181]). If the Appellant’s interpretation were correct, it would mean that anyone applying under the EUSS could insist on being given settled status from the outset whether they were entitled to such as a matter of EU law or not. That cannot be the position.
25. The Appellant relies also on [193] of the judgment as follows:
“Having found for the claimant on both issues, the claimant is entitled to a declaration that the defendant’s interpretation of the Withdrawal Agreement, the EEA EFTA Agreement and the Swiss Citizens Rights Agreement is wrong in law and that the EUSS is accordingly unlawful insofar as it (a) purports (as described in the court’s findings on the first issue) to abrogate rights of residence arising under the Agreements in respect of those granted limited leave to remain; and (b) purports to abrogate the right of permanent residence in the manner described in the court’s findings in respect of the second issue.”
26. However, as Mr Avery points out, the interpretation which the Appellant seeks to place on that paragraph is undermined by the Judge’s conclusion as set out at [192] of the judgment as follows:
“Accordingly, my conclusion is that the claimant and the Commission are correct. Properly interpreted, the WA means that the rights conferred by the grant of new residence status under Article 18 to those who do not, at that point, have a right of permanent residence, includes the right to reside permanently in the United Kingdom, pursuant to Article 15, once the five-year period has been satisfied (subject to the conditions mentioned in Article 15(1)). I reach this conclusion by reference to Article 31 of the Vienna Convention. I do not do so by importing any free-standing principles of EU free movement law because, so far as this country is concerned, there are no such free-standing principles. I confirm that there is no need for a reference to the CJEU. The matter is acte clair.”
[our emphasis]
27. For those reasons, the judgment in Citizens’ Rights does not avail the Appellant. It says nothing about those in his specific situation and, even in relation to those who have rights as EEA nationals and their family members, the judgment provides only that such a person cannot be required to make a second application once the five years’ period for permanent residence is completed.
28. We turn then to deal with the provisions of Article 18 of the Withdrawal Agreement itself upon which Mr Solomon placed reliance. He relied on those provisions as a proposition that the Withdrawal Agreement is more generous than pre-existing EU law in relation to the position of durable partners.
29. Mr Solomon drew our attention to Article 18(1)(l)(iv) and Article 18(1)(m). It is necessary to read those provisions in the context of the framework of Article 18 as a whole. The relevant provisions in our view are as follows:
“Article 18
Issuance of residence documents
1. The host State may require Union citizens or United Kingdom nationals, their respective family members and other persons, who reside in its territory in accordance with the conditions set out in this Title, to apply for a new residence status which confers the rights under this Title and a document evidencing such status which may be in digital form.
Applying for such a residence status shall be subject to the following conditions:
…
(l) the host State may only require family members who fall under point (e)(i) of Article 10(1) or Article 10(2) or (3) of this Agreement and who reside in the host State in accordance with point (d) of Article 7(1) or Article 7(2) of Directive 2004/38/EC to present, in addition to the identity documents referred to in point (i) of this paragraph, the following supporting documents as referred to in Article 8(5) or 10(2) of Directive 2004/38/EC:
…
(iv) for the persons referred to in Article 10(2) or (3) of this Agreement, a document issued by the relevant authority in the host State in accordance with Article 3(2) of Directive 2004/38/EC.
(m) the host State may only require family members who fall under point e(ii) of Article 10(1) or Article 10(4) of this Agreement to present, in addition to the identity documents referred to in point (i) of this paragraph, the following supporting documents as referred to in Articles 18(5) and 10(2) of Directive 2004/38/EC:
…”
30. The first point to be made is that Article 18 is clearly concerned with the formalities of constitutive schemes set up by the UK and other EU member States. It does not confer substantive rights.
31. In any event, Article 18(1)(l)(iv) makes clear that the UK is entitled to require a document in order to recognise status for those in the Appellant’s position. Article 18(1)(m) has nothing to do with this case. It concerns persons whose rights arise under Article 10(4) and not Article 10(3). Mr Solomon submitted that a durable partner already in the UK could not be in any less advantageous position than a durable partner outside the UK. However, as we pointed out, Article 10(4) deals with the situation of those recognised as durable partners by another EU member State or who have at the very least formed the relationship outside the UK. Such persons are not in a comparable position to the Appellant.
32. Finally, the Withdrawal Agreement itself recognises the distinction between those in the position of the Appellant and those whose rights arise under Article 10(4) rather than Article 10(3).

SUMMARY AND CONCLUSIONS
33. We are bound by the Court of Appeal’s judgment in Aibangbee. The Appellant does not have rights of residence in the UK unless and until his residence is facilitated by the Respondent.
34. As such, the Appellant had no retained rights under EU law until 23 March 2021 when he was issued a residence card. He had Article 8 leave to remain under the domestic Rules but those were not rights in EU law.
35. The Appellant cannot succeed in his appeal on the ground that the Respondent’s decision is unlawful as contrary to Appendix EU to the Rules. Under those Rules, the Appellant requires a document to evidence his durable relationship. He did not have that document until 23 March 2021.
36. The position is not altered by the Withdrawal Agreement which is (as one would expect) in conformity with principles of EU law which existed at the time of withdrawal. The Appellant is someone who has rights arising from Article 10(3) of the Withdrawal Agreement. He applied to have his residence facilitated before 11pm on 31 December 2020. His residence was facilitated shortly thereafter.
37. The Appellant cannot claim to have resided in the UK in accordance with EU law until such time as his residence was facilitated. Therefore, for the purposes of Article 15 of the Withdrawal Agreement, his residence in accordance with EU law began on 23 March 2021.
38. The impact of the Citizens’ Rights judgment is that the Appellant will not have to make any further application once he has completed five years’ residence as the family member of an EEA national (in March 2026). That right will arise automatically (provided of course he continues to reside in accordance with EU law). The Citizens’ Rights judgment otherwise has no relevance to this case.
39. The Appellant cannot therefore show that the Respondent’s decision is unlawful as contrary to the Withdrawal Agreement.
40. For those reasons, the Appellant’s appeal fails on both grounds and is hereby dismissed.
Notice of Decision
The Appellant’s appeal is dismissed on all grounds.

L K Smith
Upper Tribunal Judge Lesley Smith

Judge of the Upper Tribunal
Immigration and Asylum Chamber

21 March 2023
APPENDIX: ERROR OF LAW DECISION

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: UI-2022-002997
[EA/13320/2021]

THE IMMIGRATION ACTS

Heard at Field House, London
On Friday 28 October 2022
Decision & Reasons Promulgated

…09/12/2022…………………

Before
UPPER TRIBUNAL JUDGE SMITH
DEPUTY UPPER TRIBUNAL JUDGE COTTON

Between

SECRETARY OF STATE
FOR THE HOME DEPARTMENT
Appellant
-and-

MR AHTSHAM ALI
Respondent

Representation:
For the Appellant: Mr S Kotas, Senior Home Office Presenting Officer
For the Respondent: Mr G Davison, Counsel instructed by MHS Solicitors

DECISION AND REASONS
1. The Secretary of State appeals against the decision of First-tier Tribunal (FtT) Judge Chana promulgated on 21 March 2022 (“the Decision”). We refer to the parties as they were in the FtT for ease. The appellant (a citizen of Pakistan) had applied for indefinite leave to remain (also known as settled status) under the EU Settlement Scheme. By decision letter dated 6 September 2021, the respondent decided he was not entitled to settled status but was entitled to leave to remain (otherwise known as pre-settled status). The appellant appealed to the FtT, where his appeal was allowed.
In the First-tier Tribunal
2. The appellant produced an Islamic marriage certificate to the FtT showing he married his sponsor (an EEA citizen) on 17 April 2016. Because an Islamic marriage certificate does not evidence a marriage for the purposes of UK law, his application for settled status was based on him being a durable partner of an EEA citizen under Appendix EU to the Immigration Rules.
3. Appendix EU provides for settled status to be granted to those who have been a family member of an EEA citizen, and resident in the UK (with some exceptions that are not relevant to our decision), for 5 years. The FtT found that he was a family member of the sponsor because he had been a durable partner of his sponsor since 2016.
4. In concluding that the appellant had been a durable partner for that length of time, the FtT assessed the application of the Immigration Rules as follows:
14. A durable partner is defined by Annex 1. It requires living together in a relationship akin to a marriage or civil partnership for at least two years Second, the durable partnership must be established by ‘required evidence of family relationship’ which satisfies the Entry Clearance Officer that the durable partnership exists, and did at the relevant time.
15. The appellant has lived in this country as a durable partner with his EEA national sponsor since 2016 and therefore has lived in this country for more than five years with his durable partner. There is sufficient evidence that they are living together and intend to continue to do so.
5. The FtT also referred to Home Office guidance which suggests that without a permanent residence document, an applicant can prove family relationship for the relevant period by a relevant document as the durable partner of the sponsor and evidence that the relationship remains durable. The FtT concluded that the appellant had provided sufficient evidence to show a durable relationship with the sponsor since 2016.
In the Upper Tribunal
6. The respondent appealed the FtT decision on the basis that the FtT had made a material error of law. Permission was granted by Judge Landes of the First-tier Tribunal on 17 May 2022.
7. On appeal, the respondent asserts that the FtT failed to take into consideration that the appellant did not have a residence card for the 5 years’ residence relied on. The definition of ‘durable partner’ requires a person to hold a relevant document as the durable partner of the sponsor for the period of residence relied upon. This is not simply a procedural requirement that the FtT could safely overlook, submits the respondent. The requirement in the Immigration Rules for a relevant document transposes the requirement of the Withdrawal Agreement for the appellant to prove his residence in the UK was ‘facilitated’ in order for the appellant to be within the scope of the Withdrawal Agreement.
8. The appellant accepted that, if the case of Secretary of State for the Home Department v Aibangbee [2019] EWCA Civ 339 is to be followed, the length of the relevant residence under the Immigration Rules is to be calculated from the date the residence card was issued. However, Aibangbee and associated caselaw considers the interpretation of the Immigration (European Economic Area) Regulations 2016 (the EEA regs), and not the Withdrawal Agreement. The Withdrawal Agreement was a negotiated agreement between the UK and the EU that was not simply a re-statement of existing law. It is more generous than the earlier EU law in its terms. In addition, the appellant’s rights under art 8 European Convention on Human Rights are arguably engaged. The appellant further submits it is arguable that, because the Withdrawal Agreement is more generous than the EEA regs, the inability to invoke proportionality identified in Secretary of State for the Home Department v Celik [2022] UKUT 00220 (IAC) does not apply (where the appellant has no substantive right under the Withdrawal Agreement, the appellant cannot invoke the concept of proportionality in Article 18.1(r) of the Withdrawal Agreement or the principle of fairness).
Analysis and conclusions
9. We note that paragraph EU 11 of the Immigration Rules states that a family member of a relevant EEA citizen will have indefinite leave to remain where one of 7 conditions are met. Condition 3 is relevant to the appellant and requires him to be a family member of the sponsor (who is a relevant EEA citizen) and to have completed a continuous qualifying period of five years as a family member. The definitions section of appendix EU defines a ‘family member of a relevant EEA citizen’ as being someone who is the durable partner of a relevant EEA citizen, the partnership was formed before the specified date, and the partnership remains durable at the date of application. ‘Durable partner’ is itself defined as a person who is in a durable relationship with the sponsor, with the couple having lived together in a relationship akin to a marriage or civil partnership for at least two years, and:
“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”
10. The term ‘relevant document’ is defined by appendix EU as “a family permit, registration certificate, residence card, document certifying permanent residence, permanent residence card or derivative residence card issued by the UK under the EEA Regulations on the basis of an application made under the EEA Regulations…”. The appellant was in fact issued with a residence card on 6 September 2021.
11. The FtT did consider the definition of ‘durable partner’ at [14]. However, she did not take into account the requirement of a relevant document to have been held “for the period of residence relied upon” in the assessment of that definition nor the definition of a ‘relevant document’. Those requirements are an inherent part of the basis for indefinite leave to remain under EU 11, even if they are hidden deep in the definitions of that annex. We consider that the requirement to hold a relevant document is an essential part of the requirements as it goes to prove that an applicant’s presence is being facilitated by the UK. The failure to assess whether the appellant’s case met this requirement of the Immigration Rules is an error in law.
12. The appellant submits that, because of the more generous terms of the Withdrawal Agreement, the FtT might have come to the same decision. However, we take the view that there is a real chance that the decision of the FtT would have been different had the full definition of a durable partner been used. The error was a material one.
13. We have carefully considered whether it would be appropriate simply to dismiss the appeal without more given what we say above about the requirements of the EUSS and the appellant’s inability to satisfy those. However, Mr Davison raised some interesting points of law in his submissions and we do not consider it appropriate simply to dismiss the appeal without giving the appellant the opportunity to argue those and for the respondent to answer them.
14. We therefore set aside the determination of the FtT. We retain the finding that the appellant and the sponsor were in a relationship that (save for the requirement of facilitation) was a durable one. The remaining issues are ones of law and so we retain the case in the Upper Tribunal. Each party is to submit a skeleton argument for the resumed hearing within 21 days of promulgation of this decision.
DECISION
The decision of First-tier Tribunal Judge Chana promulgated on 21 March 2022 includes a material error of law. We set aside the decision.
We preserve the finding that the appellant and sponsor were in a relationship that (save for the requirement of facilitation) was a durable one.
The decision will be re-made at a resumed hearing in the Upper Tribunal.
Within 21 days from the date when this decision is sent, each party will file a skeleton argument with the Upper Tribunal and serve it on the other party.
No order for anonymity is made.

Signed: D Cotton

Deputy Upper Tribunal Judge Cotton Dated: 9 November 2022