Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2022-006120

First-tier Tribunal No: EA/16094/2021

THE IMMIGRATION ACTS

Decision & Reasons Issued:

12TH April 2024

Before

UPPER TRIBUNAL JUDGE O’CALLAGHAN

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MS SABIHA SADOK-CHERIF
(NO ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Mr T Lindsay, Senior Presenting Officer
For the Respondent: Ms K Joshi, legal representative, Joshi Advocates Ltd

Heard at Field House on 15 March 2024

DECISION AND REASONS
Introduction
1. The Secretary of State appeals a decision of Judge of the First-tier Tribunal Cohen (‘the Judge’) allowing Ms Sadok-Cherif's appeal. The decision was sent to the parties on 11 October 2022.
2. The underlying appeal concerns a decision of the Secretary of State to refuse to grant Ms Sadok-Cherif pre-settled status under the EU Settlement Scheme (‘EUSS’) as the dependent relative of her sponsor, Mr Reda Boudhar, a Danish national exercising EU Treaty rights in the United Kingdom. The decision is dated 19 November 2021.
3. The day before the error of law hearing, the Court of Appeal handed down judgment in Siddiqa v. Entry Clearance Officer [2024] EWCA Civ 248. The representatives were given time to consider the judgment and were informed that an adjournment request would be favourably considered if additional time was required. Both representatives confirmed that they had been granted sufficient time to consider the judgment and were content to proceed.
Relevant Facts
4. Ms Sadok-Cherif is a national of Algeria and presently aged 56. She met the sponsor in January 2018. A relationship soon commenced, and they started to reside with each other in March 2018. They were engaged on 14 February 2019. The sponsor travelled to Algeria in 2018 and 2019 to meet Ms Sadok-Cherif's family. The couple underwent a religious marriage on 1 April 2019.
5. A notice of marriage was issued on 15 March 2021 and the couple were married in the United Kingdom on 12 July 2021.
6. Ms Sadok-Cherif applied on 27 July 2021 for a Family Permit under the EUSS. The Secretary of State refused the application by a decision dated 19 November 2021, observing, inter alia:
‘You state that you are a spouse of a relevant EEA citizen. However, you have not provided sufficient evidence to confirm this. The reasons are explained below.
... The relationship with the relevant sponsor needs to have existed by 11pm GMT on 31 December 2020.
You have provided a marriage certificate, which states that you were married on 12 July 2021, as evidence that you are the spouse of an EEA citizen. As this relationship was not formed before the specified date detailed above, consideration has been given to whether you meet the eligibility requirements as a durable partner.
The required evidence of family relationship for a durable partner of a relevant EEA citizen is a valid family permit or residence card issued under the EEA Regulations ...
Home Office records do not show that you have been issued with a family permit or residence card under the EEA Regulations as the durable partner of the EEA national ...
In order to meet the definition of a durable partner as set out in Annex 1 of Appendix EU to the Immigration Rules, you need to demonstrate that you are a relative of your sponsor as claimed and that you hold a valid relevant document.
...
However, for the reasons already explained above, you have not provided sufficient evidence to confirm that you are a spouse of a relevant EEA citizen and previously the durable partner of the same relevant EEA citizen. Therefore, you do not meet the requirements for pre-settled status on this basis.’
First-tier Tribunal Decision
7. The hearing came before the Judge sitting at Taylor House on 6 June 2022. Ms Sadok-Cherif and Mr Boudhar attended and gave evidence.
8. I observe at the outset that the Judge heard the appeal prior to the promulgation of the Upper Tribunal decisions in Celik (EU Exit: Marriage: Human Rights) [2022] UKUT 220 (IAC), [2022] Imm AR 1438 (19 July 2022) and Batool (Family Members: EU Exit) [2022] UKUT 219 (IAC), [2022] Imm AR 1382 (19 July 2022) but these decisions were reported before his decision was promulgated in October 2022. The Court of Appeal judgments in Celik v. Secretary of State for the Home Department [2023] EWCA Civ 921, [2023] Imm. AR 1599 and Siddiqa were handed down in 2023 and 2024 respectively.
9. The Judge erroneously commenced his decision by identifying the right of appeal as arising under section 82 of the Nationality, Immigration and Asylum Act 2002 and the challenged decision having been made under the Immigration (European Economic Area) Regulations 2016 (‘the 2016 Regulations’). I note that Ms Sadok- Cherif brought her appeal under the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 (‘the 2020 Regulations’) and the Secretary of State’s decision was made under Appendix EU to the Immigration Rules.
10. The Judge observed “the core reason for which the [Secretary of State] appears to have refused [Ms Sadok-Cherif's] case is that she lacked a prior residence card’, at [14].
11. The Judge found Ms Sadok-Cherif to be in a durable relationship with the sponsor and to be dependent upon him.
12. In conclusion:
‘24. I find that the respondent’s refusal of the appellant’s application on the basis that the appellant did not hold a residence card under the EEA regulations is erroneous in the light of the courts (sic) findings that the appropriate immigration rules are impenetrable. I find that the decision is not in accordance with the law and that the application was refused erroneously.
25. The appellant meets the requirements of regulation 14 of the Regulations.
26. In the light of the above, I find that the appellant’s appeal under the Regulations fall to be allowed.
27. The respondent’s decision is not in accordance with the law and Regulations. I therefore allow the appeals (sic) under the Regulations.’
13. The Judge noted at [2] of his decision that in refusing the application the Secretary of State considered requirements of Appendix EU, and at [23] finds that Ms Sadok- Cherif met “the eligibility requirements for limited leave to enter under appendix EU”, but then concluded at [25] that Ms Sadok-Cherif meets the requirements of regulation 14 of the 2016 Regulations which is concerned with extended rights of residence.
Grounds of Appeal
14. The core of the Secretary of State’s challenge is that the Judge failed to lawfully consider the relevant provisions of Appendix EU. The appeal was bound to fail as the marriage took place after 2300 GMT on 31 December 2020 and at this time Ms Sadok-Cherif did not possess the required ‘relevant document’.
15. Permission to appeal was granted by Judge of the First-tier Tribunal Athwal on 25 November 2022.
16. Ms Sadok-Cherif relies upon a rule 24 response, dated 2 March 2023, which seeks at some length to argue that the Presidential guidance in Celik was issued in the absence of consideration to ‘presiding’ legislation and reference to the definition of ‘durable partner’ in Annex 1 to Appendix EU.
17. By directions sent to the parties on 6 December 2023, Upper Tribunal Judge Jackson indicated her provisional view that the grounds of appeal asserting error of law were bound to succeed as Ms Sadok-Cherif had not made any application for facilitation and residence prior to 31 December 2020 and so was not within the personal scope of the Withdrawal Agreement (‘the Agreement’). The parties were requested to reconsider their respective positions in light of the Court of Appeal judgment in Celik. Ms Sadok-Cherif did not respond to the directions and the matter was listed for hearing.
18. I adjourned an error of law hearing held on 12 January 2024 to permit Ms Sadok- Cherif to address her case by means of skeleton argument. She complied with directions, filing and serving a detailed skeleton argument dated 27 February 2024 and an accompanying bundle of legislation.
Law
19. Whilst the United Kingdom was a member of the European Union it was bound to give effect to European Union law including the law governing freedom of movement for EU citizens and their family members. The United Kingdom gave effect to Union law by means of the European Communities Act 1972.
20. Article 2 of the Citizens’ Directive (Directive 2004/38/EC) defines a ‘family member’ as, inter alia, the spouse or partner with whom the Union citizen has contracted a registered partnership (equivalent to marriage).
21. Article 3(2)(b) of the Directive defines as a beneficiary of the rights enjoyed by an EEA citizen (‘any other, or extended, family members’) a ‘partner with whom the Union citizen has a durable relationship, duly attested’.
22. There is a fundamental distinction between a ‘family member’ and ‘any other family members’ for the purposes of the Directive.
23. On ‘exit day’ - 23.00 GMT on 31 January 2020 – the European Communities Act 1972 was repealed: section 20(1) of the European Union (Withdrawal) Act 2018. The 2018 Act provided savings and modifications to the 1972 Act and established a transition period that commenced when the United Kingdom left the European Union on exit day and ended at 23.00 GMT on 31 December 2020 (‘the specified date’).
24. The Agreement was negotiated between the European Union and the United Kingdom under Article 50 of the Treaty of the European Union. The aim of the Agreement, which was entered into in late 2019, was to set out the arrangements for the United Kingdom’s withdrawal from the European Union on 31 January 2020.
25. The European Union (Withdrawal Agreement) Act 2020 provides for the direct application of the Agreement provisions in domestic law (where relevant) and amends the 2018 Act to ensure it reflects the terms of the Agreement.
26. Article 126 of the Agreement provides for a transition period identified above. During that period, European Union law continued to apply in the United Kingdom. Thereafter, Article 4 provides for individuals to rely directly on the provisions of the Agreement, which meet the conditions for direct effect under European Union law. In accordance with Article 4, the Agreement is given direct effect in the United Kingdom by section 7A of the 2018 Act.
27. An extended, or other, family member did not enjoy a right of entry and residence under the EEA treaties, as they were not a family member as defined. In respect of such persons, Article 3 of the Citizen’s Directive required a host Member State, in accordance with its national legislation, to facilitate entry and residence. Domestically an applicant was required to establish that they were dependants, or members of the household, of the Union citizen and once it was established that the person was an extended, or other, family member within the meaning of regulation 8 of the 2016 Regulations the respondent was required to decide whether in all the circumstances a right of entry/ residence should be granted: regulation 12(4)(c)/ regulation 18(4)(c) of the 2016 Regulations. This was a matter of discretion, not right, and required an extensive examination of an applicant’s personal circumstances, with a reasoned decision. Upon issuance of a residence document, an extended, or other, family member fell to be considered as a family member. Under the 2016 Regulations, as well as the earlier Immigration (European Economic Area) Regulations 2006, the status of extended family member, including those in a durable relationship, only came into being once the relevant document was issued upon discretion having been exercised, and the issuing of the relevant document did not have retrospective effect: Secretary of State for the Home Department v. Aibangbee [2019] EWCA Civ 339, [2019] 1 WLR 4747.
28. Extended family members, referred to as other family members in the Agreement, who resided in the United Kingdom by the end of the transition period by virtue of their relationship to a Union citizen exercising a European Union right to reside in this country fell within scope of the Agreement. This presupposes that the person was issued with a residence document by the respondent to confirm their family status.
Discussion
29. On behalf of the Secretary of State, Mr Lindsay relied upon the Court of Appeal judgment in Celik. This matter was described as a straightforward appeal where Ms Sadok-Cherif was not being facilitated at 11pm on 31 December 2020 and so could not succeed in her EUSS appeal.
30. Mr Lindsay further observed that the Judge had proceeded on the basis that the appeal was to be considered under the 2016 Regulations, at [1], and concluded at [25] and [26] that Ms Sadok-Cherif met the requirements of ‘extended right of residence’ as established by regulation 14 of the 2016 Regulations. As noted above, the appeal was brought under the 2020 Regulations. There was a failure to consider and apply the relevant definition of ‘durable partner’ located in Annex 1 to Appendix EU.
31. Ms Joshi accepted that the Judge erroneously considered the appeal under the 2016 Regulations but submitted that the error was not material as Ms Sadok-Cherif could establish that she met the definition of durable relationship under Appendix EU, or alternatively under the Agreement.
32. I find that consequent to consideration of the appeal under the 2016 Regulations the decision of the Judge was fatally flawed by material error of law. It is a very confused decision – the Judge referenced the Immigration Rules as ‘impenetrable’ with no express engagement with the requirements of Appendix EU including the relevant definitions. For the reasons detailed below, the Judge’s decision cannot be saved on materiality grounds by means of the submissions advanced on behalf of Ms Sadok-Cherif before the Upper Tribunal because, despite Ms Joshi’s efforts, they enjoy no merit.
33. The proper course is for the Judge’s decision to be set aside in its entirety and the decision in this appeal to be remade.
Remaking
34. Ms Joshi and Mr Lindsay accepted before me that if I were to set aside the Judge’s decision, the submissions advanced at the hearing as to the materiality of the error could be incorporated into the remaking of the appeal decision. Neither representative requested that Ms Sadok-Cherif and Mr Boudhar give evidence, there being no dispute as to the personal facts detailed in the ‘relevant facts’ section above.
35. I confirm for the purpose of the remade decision that Ms Sadok-Cherif and Mr Boudhar are in a genuine relationship and have been since 2018.
Celik
36. Ms Joshi did not accept Celik to be correctly decided, either in the Upper Tribunal or the Court of Appeal but acknowledged that the Supreme Court refused Mr Celik permission to appeal by an Order dated 24 January 2024 (Lord Lloyd-Jones, Lord Leggatt and Lady Rose). She accepted that the ratio of the Court of Appeal judgment is binding upon this Tribunal.
37. The Court of Appeal confirmed in Celik that on the proper interpretation of article 10 of the Agreement an appellant who had married an EEA citizen after the end of the post-European Union exit transition period did not have any right to reside in the United Kingdom. The fact that their marriage had been delayed due to the COVID-19 pandemic did not alter the interpretation of the Agreement.
38. On the ordinary meaning of the words in Article 10(1)(e)(i) of the Agreement read in context and having regard to the purpose underlying the Agreement, it does not include persons who married an EEA national after the end of the transition period and who were not, therefore, residing in the United Kingdom as a spouse or civil partner in accordance with European Union law at the end of the transition period. The fact that persons did not, or could not, exercise free movement rights, or did not or could not marry, until after that date does not alter the meaning or purpose of the Agreement. That does not involve any breach of the obligation in Article 5 of the Agreement to act in good faith and to take all appropriate measures to ensure fulfilment of the obligations arising from the Agreement. The relevant obligation is to ensure that family members, defined to include spouses and civil partners of EU citizens, but not unmarried partners in a durable relationship, resident in the United Kingdom at the end of the transition period could continue to enjoy rights of residence after the end of the transition period. The United Kingdom complied with that obligation. The principle of proportionality is not intended to lead to the conferment of residence status on people who would not otherwise have any rights to reside.
39. By her submissions Ms Joshi advanced two submissions as to why the ratio in Celik does not apply to Ms Sadok-Cherif:
i. She benefits from the preservation of the ‘grace period’ established by regulation 3 of the Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020 (‘the Grace Period Regulations’); and
ii. She benefits from paragraph (b)(ii)(bb)(aaa) of the definition of ‘durable partner’ in Annex 1 of Appendix EU to the Immigration Rules.
Article 18 of the Withdrawal Agreement
40. Before considering the two submissions advanced on behalf of Ms Sadok-Cherif, it is appropriate to observe that they are underpinned by an erroneous understanding of Article 18 of the Agreement.
41. The Agreement is a means of providing certainty for EU citizens living in the United Kingdom, and United Kingdom nationals living in European Union countries. Those falling within scope of the Agreement have broadly the same entitlements to work, study and access public services and benefits as they enjoyed on the specified date, in as far as these entitlements derived from the United Kingdom’s membership of the European Union. Part Two of the Agreement (Articles 9-39) provides that all United Kingdom nationals lawfully residing in a Member State at the end of the implementation period are able to stay, as will all EU citizens lawfully residing in the United Kingdom. Their family members resident in the host state by 31 December 2020 are also be covered by the rights set out in the Agreement.
42. The Court of Appeal has recently confirmed in Siddiqa, at [80], that the provisions of Article 18, when properly interpreted, apply to extended family members whose entry (or leave) was being, or had been, facilitated at the specified date. Once that step under domestic law and the 2016 Regulations has been achieved, a successful applicant can apply for residence pursuant to Article 18 under the relevant United Kingdom scheme. Ms Sadok-Cherif had neither secured, nor was seeking, facilitation at the specified date. Consequently, she is not such an applicant and therefore cannot rely on the provisions of Article 18.
The grace period
43. The Grace Period Regulations detail, inter alia:
Deadline for applications
2. The end of 30 June 2021 is the deadline for submission of an application for residence status (“application deadline”) that applies for the purposes of the following provisions—
(a) the first sub-paragraph of Article 18(1)(b) of the withdrawal agreement;
(b) the first sub-paragraph of Article 17(1)(b) of the EEA EFTA separation agreement; and
(c) the first sentence of Article 16(1)(b) of the Swiss citizens’ rights agreement.
Grace period
3.
(1) This regulation has effect if the EEA Regulations 2016 are revoked on IP completion day (with or without savings).
(2) The provisions of the EEA Regulations 2016 specified in regulations 5 to 10 continue to have effect (despite the revocation of those Regulations) with the modifications specified in those regulations in relation to a relevant person during the grace period.
(3) The provisions specified in regulation 11 apply in relation to a relevant person during the grace period as if any reference to the EEA Regulations 2016 or any provision of those Regulations are to the Regulations or provision of the Regulations as continued in effect and modified by regulations 5 to 10.
(4) The enactments specified in regulation 12 apply in relation to a relevant person during the grace period with the modifications specified in that regulation.
(5) For the purposes of this regulation—
(a) the grace period is the period beginning immediately after IP completion day and ending with the application deadline;
(b) a person is to be treated as residing in the United Kingdom at any time which would be taken into account for the purposes of calculating periods when the person was continuously resident for the purposes of the EEA Regulations 2016 (see regulation 3);
(c) a person who does not have the right to reside in the United Kingdom permanently is to be treated as having such a right if the person had a right of permanent residence in the United Kingdom under those Regulations (see regulation 15) and who, immediately before IP completion day, has been absent from the United Kingdom for a continuous period of 5 years or less (disregarding any period of absence before the person acquired the right of permanent residence).
(6) In this regulation—
...
“family member”—
(a) has the same meaning as in paragraph (1) of regulation 7 of the EEA Regulations 2016 (read with paragraph (2) of that regulation) as those Regulations had effect immediately before IP completion day, and
(b) includes an extended family member within the meaning of regulation 8 of those Regulations as they had effect immediately before IP completion day if that person—
(i) immediately before IP completion day satisfied the condition in regulation 8(5) of those Regulations (durable partner), or
(ii) holds a valid EEA document (regardless of whether that document was issued before or after IP completion day);
44. The 2016 Regulations were the primary vehicle by which the United Kingdom implemented its European Union obligations concerning the free movement of European Union citizens and their family members. The 2016 Regulations were revoked following the United Kingdom’s withdrawal from the European Union, but they remain in force for certain specified purposes, some of which are set out in the Grace Period Regulations, establishing a ‘grace period’ from 31 December 2020 to 30 June 2021.
45. Regulation 8(5) of the 2016 Regulations is concerned with ‘durable relationship’ and, as confirmed in Aibangbee, the status of ‘extended family member’ only came into being once the relevant document was issued: see also Macastena v Secretary of State for the Home Department [2018] EWCA Civ 1558, [2019] 1 WLR 365.
46. Ms Joshi’s focus was directed to paragraph (6)(b)(i) of the Grace Period Regulations. However, the Regulations are properly to be read as a whole.
47. The Grace Period Regulations has two purposes. It established the deadline of 30 June 2021 for applications to the EUSS by those EU citizens and their family members who were resident in the United Kingdom by 31 December 2000. This was the end of the transition period. Secondly, it saved existing relevant European Union law rights for those EU citizens and their family members who were lawfully resident in the United Kingdom at the end of the transition period but who had not by then obtained status under the EUSS.
48. Ms Sadok-Cheif’s application for pre-settled status under the EUSS was made on 27 July 2021, as confirmed by the Secretary of State’s certificate of application dated 12 November 2021 which is placed within his bundle. No reasons were given for the delay. On its face, regulation 2 of the Grace Period Regulations is clear as to the time limit of the grace period. As understood, Ms Sadok-Cherif submitted that the grace period was unending so long as a Certificate of Application is issued by the Secretary of State upon receipt of the application, because this was a document issued under Article 18(1)(b) of the Agreement. There is no merit to this submission, which seeks to invert the process by regarding a condition upon applying for a residence document as being capable of establishing status by itself. It is founded upon a misunderstanding of the nature and substance of Article 18 of the Withdrawal Agreement. The Grace Period Regulations apply to extended family members, including those in a durable relationship, who are being or have been facilitated. Ms Sadok-Cherif had not sought to be facilitated by the specified date and so was not a successful applicant who could apply for residence pursuant to Article 18 under the relevant United Kingdom scheme: Siddiqa. She secures no benefit from Article 18. Ms Sadok-Cherif does not meet the first purpose of the Grace Period Regulations.
49. In any event, for the reasons detailed below, Ms Sadok-Cherif comes nowhere close to meeting the second purpose. She again relies upon a misconceived approach to the applicability of Article 18 of the Agreement as a panacea for not having sought or been facilitated by the specified date.
50. Regulation 3 of the Grace Period Regulations specifies the persons in relation to whom the 2016 Regulations continue to have effect. A “relevant person” who enjoys the continued effect of the 2016 Regulations is defined in regulation 3(6) and, in summary, is one who held a right to reside under the 2016 Regulations immediately before the conclusion of the implementation period. Such person continues to enjoy a right to reside and the corresponding protection from removal conferred by those regulations.
51. Ms Sadok-Cherif did not hold a right to reside under the 2016 Regulations immediately before the conclusion of the implementation period because she was not married to the sponsor, nor was she provided with a residence card consequent to being in a durable relationship. She was therefore not a ‘family member’. She secures no benefit from the Grace Period Regulations and this ground is dismissed.
Paragraph (b)(ii)(bb)(aaa)
52. The definition of durable partner in Annex 1 to Appendix EU requires:
‘(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)’
53. In addition, one of two criteria are to be met. The first, established at paragraph (b)(i) is not relevant in this matter. The second, (b)(ii), is said to be relevant:
‘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 ...’
[Emphasis added]
54. This criterion confirms by use of the words ‘and where’ that it is conditional upon four requirements being met, namely those established by (1) paragraph (b)(ii) (aa), date of application; (2) paragraph (b)(ii)(bb), status of the person; (3) paragraph (b)(ii)(cc), that it is not a ‘durable partnership of convenience’; and (4) paragraph (b)(ii)(dd) no other durable partner at relevant times.
55. Ms Sadok-Cherif relies upon paragraph (b)(ii)(bb)(aaa), concerned with ‘person’, which in the version relevant to these proceedings detailed
“(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.
...
the Secretary of State is satisfied by evidence provided by the person that the partnership was formed and was durable before (in the case of a family member of a qualifying British citizen as described in sub-paragraph (a)(i)(bb) or (a)(iii) of that entry in this table) the date and time of withdrawal and otherwise before the specified date”
[emphasis added]
56. This definition permits certain persons in a durable partnership to meet the definition of ‘durable partner’ even where they did not hold a residence card in that capacity prior to the specified date of 31 December 2020 at 23.00GMT.
57. Ms Sadok-Cherif does not contend that she enjoyed alternative lawful status on the specified date or that she met the definition of ‘family member of a relevant EEA citizen’ as defined in Annex 1 of Appendix EU. Her case was that she fell within paragraph (b)(ii)(bb)(aaa) because it was designed to bring into effect Article 18 of the Agreement. Simply being in a durable relationship was said to be sufficient to satisfy the definition, and no more. It was submitted that there was no attendant requirement for the Secretary of State to exercise discretion and issue a residence document, as required under the 2016 Regulations regime, before an applicant such as Ms Sadok-Cherif could enjoy the benefit of this element of the definition established by Annex 1.
58. The core of this contention, as accepted by Ms Joshi, was that as Ms Sadok-Cherif met, on her reading, paragraph (b)(ii)(bb)(aaa) this resulted in her not being required to meet the attendant requirement of facilitation established elsewhere in Appendix EU and the Agreement.
59. The Upper Tribunal has recently held in the reported decision of Hani (EUSS durable partners: para. (aaa)) [2024] UKUT 00068 (IAC), that the effect of paragraph (b)(ii)(bb)(aaa) is that a person who was in a durable partnership but did not have a ‘relevant document’, and who did not otherwise have a lawful basis of stay in the United Kingdom at the specified date, is incapable of meeting the definition of ‘durable partner’.
60. In Hani it was observed that the first half of the criteria in paragraph (b)(ii)(bb)(aaa), taken in isolation, cast the net very broadly: the criteria encompass those in a durable partnership who are unlawfully resident, on the one hand, and migrants with a lawful immigration status, on the other. However, the linking word ‘unless’ introduces express limitation to the broad first criteria:
‘35. The operative wording of the “unless” exception is therefore found in the final clause: “and they did not otherwise have a lawful basis of stay in the UK and Islands for that period...” This is the crucial wording that gives effect to the “unless” and avoids the otherwise absurd consequences that would result, but for the engagement of the exception. It requires an examination of the immigration status of the applicant at the relevant time. It is the means by which para. (aaa) distinguishes between applicants with no lawful basis of stay, on the one hand, and persons with a lawful basis of stay on some other basis, on the other.
36. A person with no lawful basis of stay at the relevant times is incapable of satisfying paragraph (aaa). By contrast, an applicant who held leave in some other capacity, for example as a student, would otherwise have had a lawful basis of stay in the UK.
37. There is a logic to this construction, which must reflect the intention of the EUSS and the Withdrawal Agreement. Those who enjoyed a lawful basis of stay will not be penalised for having failed to obtain a document they didn’t need. By contrast, those who did not hold a relevant document (nor applied for the facilitation of their relationship prior to the conclusion of the implementation period) yet were present unlawfully prior to the end of the implementation period and remain so unlawfully resident in the UK cannot regularise their status through the EUSS. That is entirely consistent with the Withdrawal Agreement, and the Immigration Rules drafted to give it effect.’
61. Paragraph (b)(ii)(bb)(aaa) is intended to ensure that those who did not need to rely on the facilitation rights they enjoyed under the Citizens’ Directive due to holding another lawful basis of stay would not be penalised for deciding not to rely on rights they did not need. The Agreement makes clear that durable partners’ rights of residence under the Agreement are not mutually exclusive with any other bases of stay the individual may have in his or her own right. For the reasons detailed above Ms Sadok-Cherif secures no benefit from Article 18 of the Agreement. The submission in respect of paragraph (b)(ii)(bb)(aaa) enjoys no merit.
62. Ms Sadok-Cherif does not have any rights under Article 10(1)(e)(i) or Article 18 of the Agreement. The refusal to grant residence status was not therefore a disproportionate refusal of residence status; rather, it was a recognition that she does not have any such rights. Her appeal is properly to be dismissed.
Notice of Decision
63. The decision of the First-tier Tribunal sent to the parties on 11 October 2022 is subject to material error of law and is set aside in its entirety.
64. The decision is remade. Ms Sadok-Cherif's appeal is dismissed.

D O’Callaghan
Judge of the Upper Tribunal
Immigration and Asylum Chamber
28 March 2023