The decision



IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-001848

First-tier Tribunal No: EU/55236/2023
LE/00226/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 8th of July 2025

Before

UPPER TRIBUNAL JUDGE RIMINGTON

Between

ILHAM MEJDOUBI
(NO ANONYMITY ORDER MADE)
Appellant
and

THE ENTRY CLEARANCE OFFICER (ECO)
Respondent

Representation:
For the Appellant: Mr P Draycott instructed by Pristine Law Solicitors
For the Respondent: Ms S Rushforth, Senior Home Office Presenting Officer

Heard at Cardiff Civil Justice Centre on 23 January 2025


DECISION AND REASONS
1. The appellant, a citizen of Morocco born on 21st August 1976, appeals against the determination of First-tier Tribunal Judge ID Boyes (the judge) which dismissed the appeal against the refusal by the ECO dated 27th July 2023 under the Immigration Rules Appendix EU (Family Permit). The appellant advances that she is the durable partner of Omar Chergui (the sponsor) an Italian national who has enjoyed permanent residence in the UK since 13th November 2017. The appellant made an application on 13th May 2023 as a spouse which was refused as the appellant had failed to provide evidence of a valid marriage. On review prior to the appeal the Secretary of State, on behalf of the ECO, also considered the matter of a durable partnership.
2. The sponsor (an Italian national since at least March 2009) was married to an EU national in August 2002 in the UK whom he divorced in the UK on 14th June 2011 and apparently after his Moroccan marriage to the appellant on 8th August 2009. Subsequently the appellant and sponsor had 3 children, Mohammed (born on 2nd August 2012), Abdelali (born 27th January 2014) and Khadija born on 2nd January 2016, all of whom were granted family permits commencing on 2nd August 2023. The children arrived in the UK on 10th November 2023. The respondent has accepted that each of the sponsor’s children was a family member. There was no dispute that the children were those of the sponsor and the appellant. The application of the sponsor was, however, refused.
3. The evidence provided by the appellant included evidence of the sponsor’s 36 regular trips to Morocco to see the family, evidence of remittances and WhatsApp messages.
The grounds of appeal were as follows:
(i) the judge failed to apply the definition of ‘durable partner’ within Annex 1 of Appendix EU Family Permit (FP). At [19] and [22] the judge approached the appeal on the basis of an ‘ongoing relationship’ contrary to the requirements of Paragraph 6(1) of Appendix EU (FP) which solely asked whether the appellant was the durable partner at the time of her said application on 13th May 2023.
(ii) the judge’s findings were irrational and failed to refer to the contents of the respondent’s policy entitled ‘EU Settlement Scheme: EU, Other EEA and Swiss Citizens and their Family Members’ 22nd January 2024 which at page 117 referenced ‘other significant evidence of the durable relationship’ of an applicant who has not lived together for two years with their partner for the purposes of (c)(i)-(ii) of Annex 1 of EU (FP). The respondent had accepted the children had family life with the sponsor and, the appellant at all material times had day to day custody and shared responsibility. The judge erred when accepting that the visits had been made but had not been made to visit the sponsor and only the children when some of the dates predated the children themselves and there was no objective evidence to support the judge’s reasoning.
Albeit not accepted as a valid marriage, the Moroccan Family Book was evidence of a genuine relationship as the authorities regarded the marriage as valid in Morocco. Although the marriage was disputed, in YB (EEA Reg 17(4) – proper approach) Ivory Coast [2008] UKAIT 00062 it was still held to show strong family life for the purposes of Article 8. Also, the judge appeared to accept the evidence in the sponsor’s third witness statement that the appellant had moved into the appellant’s family home in Morocco.
(iii) the judge erred in rejecting the WhatsApp messages and video calls on the basis that there was ‘no evidence that the phone to whom the calls were made or messages sent is (A’s) phone taking them as a whole they do not add anything that de minimis support for the contentions made’ because no such objections were made in the ECO’s refusal nor in the Secretary of State’s review.
4. Permission to appeal was granted by FtT Judge Dainty who observed that all grounds were arguable and that the judge should have had reference to the policy when considering the situation of the couple who had 3 children and there was evidence of a significant number of visits. Further such points should have been raised with the sponsor at the hearing. Further reasons were required within the decision as to why the sponsor’s written and oral testimony was not being accepted.
The Legal Framework
5. The material parts of FP 6.1 and Annex 1 Appendix EU (FP) are as follows:

FP3. The applicant will be granted an entry clearance under this Appendix, valid for a period of six months from the date of decision, by an entry clearance officer where:
(a) A valid application has been made in accordance with paragraph FP4;
(b) The applicant meets the eligibility requirements in paragraph FP6(1), (2) or (3); and
(c) The application is not to be refused on grounds of suitability in accordance with paragraph FP7.
FP4. A valid application has been made under this Appendix where:
(a) It has been made using the required application process;
(b) The required proof of identity and nationality has been provided;
(c) The required biometrics have been provided; and
(d) The date of application is before 9 August 2023, where the applicant relies on meeting the eligibility requirements in paragraph FP6(2).
FP5. An application will be rejected as invalid where it does not meet the requirements in paragraph FP4(a), (b) and (d), and will not be considered where it does not meet the requirement in paragraph FP4(c).
FP6. (1) The applicant meets the eligibility requirements for an entry clearance to be granted under this Appendix in the form of an EU Settlement Scheme Family Permit, where the entry clearance officer is satisfied that at the date of application:
(a) The applicant is not a British citizen;
(b) The applicant is a family member of a relevant EEA citizen;
(c) The relevant EEA citizen is resident in the UK or will be travelling to the UK with the applicant within six months of the date of application;
(d) The applicant will be accompanying the relevant EEA citizen to the UK (or joining them in the UK) within six months of the date of application; and
(e) The applicant (“A”) is not the spouse, civil partner or durable partner of a relevant EEA citizen (“B”) where a spouse, civil partner or durable partner of A or B has been granted an entry clearance under this Appendix, immediately before or since the specified date held a valid document in that capacity issued under the EEA Regulations or has been granted leave to enter or remain in the UK in that capacity under or outside the Immigration Rules.

relevant EEA citizen (where the date of application under this Appendix is on or after 1 July 2021)
(a) an EEA citizen (in accordance with sub-paragraph (a) of that entry in this table) who:
(i) has been granted indefinite leave to enter or remain or limited leave to enter or remain under (as the case may be) paragraph EU2 or EU3 of Appendix EU to these Rules (or under its equivalent in the Islands), which has not lapsed or been cancelled, curtailed, revoked or invalidated and which is evidenced by the Home Office reference number for that grant of leave (or by the equivalent evidence in the Islands); or
(ii) at the date of decision on the application under this Appendix, the entry clearance officer is satisfied from the information available to them has been granted indefinite leave to enter or remain or limited leave to enter or remain under (as the case may be) paragraph EU2 or EU3 of Appendix EU to these Rules, which has not lapsed or been cancelled, curtailed, revoked or invalidated; or …

family member of a relevant EEA citizen
a person who has satisfied the entry clearance officer, including by the required evidence of family relationship, that they are:
(a) the spouse or civil partner …
or
(b)…or
(c) the durable partner of a relevant EEA citizen, and:
(i) the partnership was formed and was durable before the specified date; and
(ii) the partnership remains durable at the date of application; and
(iii) the date of application is after the specified date; and
(iv) where they were resident in the UK and Islands as the durable partner of the relevant EEA citizen before the specified date, the definition of ‘durable partner’ in this table was met before that date as well as at the date of application, and the partnership remained durable at the specified date; or…



durable partner
(a) the applicant is, or (as the case may be) was, in a durable relationship with the relevant EEA citizen (or, as the case may be, with the qualifying British citizen), 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) where the applicant was resident in the UK and Islands as the durable partner of a relevant EEA citizen before the specified date, the applicant held a relevant document as the durable partner of the relevant EEA citizen or, where there is evidence which satisfies the entry clearance officer that the applicant was otherwise lawfully resident in the UK and Islands for the relevant period before the specified date (or where the applicant is a joining family member) or where the applicant relies on the relevant EEA citizen being a relevant person of Northern Ireland, there is evidence which satisfies the entry clearance officer that the durable partnership was formed and was durable before the specified date; and
(c) it is, or (as the case may be) was, not a durable partnership of convenience; and
(d) neither party has, or (as the case may be) had, another durable partner, a spouse or a civil partner with (in any of those circumstances) immigration status in the UK or the Islands based on that person’s relationship with that party
Conclusions
6. Although Ms Rushforth made submissions that the judge had done enough to justify the decision, it is not evident, although the judge set out the relevant immigration rule at [2], he actually applied the definition of FP6(1), given above, at [19] and [22].
7. There was no challenge in the refusal by the ECO that the sponsor was a relevant EEA citizen. Indeed, the children were granted family permits on that basis. The relevant dates for the purposes of this appeal can be seen from the extracts of the rules above and particularly in the definition of ‘family member’ of a relevant EEA citizen at (c) (i) (ii) and (iii). The durable partnership needed to be formed and durable (i) before the specified date (that specified date was agreed by the parties before me as 31st December 2020), (ii) remained durable at the date of application (13th May 2023) and (iii) the date of application post dated the specified date (as here).
8. After exploring the validity of the marriage, the judge at [19] referred to there being very little ‘evidence of an ongoing relationship’. This indicates that the judge took the relevant dates to transcend the date of application and to be the date of the hearing which is an error. I note the hearing took place on 26th March 2024 and the appellant’s children had been in the UK since 23rd November 2023.
9. The importation of the principle from YB (EEA Reg 17(4) proper approach) Ivory Coast [2008] UKAIT 00062 was fraught with danger in that it led the judge to question at [22] as follows ‘the one permissible way to determine whether a durable partnership has been established is to ask whether the appellant has proved that they enjoy a reasonably strong Article 8 family life. I ask myself what is the family life? The fact that they have children is not conclusive of a family life. There was little in terms of an ongoing relationship. [My underlining]. The financial matters were poorly evidenced and the contact logs purportedly between them carried very little weight. I therefore conclude that there was not a reasonably strong Article 8 claim’. The relevant date for article 8 is the date of the hearing. However, there was no Article 8 decision in the ECO’s reasons for refusal letter and not an issue the judge was being asked to determine. The relevant date was that given under the rules (date of application) and the consideration of YB encouraged the judge to focus on an ‘ongoing relationship’ and thus, incorrectly, at the date of the hearing.
10. The refusal letter specifically refers to the relationship of the sponsor but does not appear to make any challenge on the specific basis of (d) within the definition of ‘durable partner’. The sponsor was an Italian national by 2011 and granted permanent residence in 2017 well beyond the date of his divorce in 2011 and it is advanced that the durable relationship between appellant and sponsor existed for many years after 2011. I explore this on the basis of the materiality of any error of law. In any event this does not preclude the proper assessment of the durable relationship.
11. It should be noted that under the definition of ‘durable partner’ the requirement for a relevant document only applies where the applicant was resident in the UK before the specified date which is not the position here.
12. There had been no challenge that the appellant and sponsor shared the responsibility of the children. I was referred to the EU Settlement Scheme: EU, Other EEA and Swiss Citizens and their Family Members’ 22nd January 2024 guidance which postdates the date of the decision but there was no indication that this had been significantly altered since the date of the ECO refusal and indeed is reflected in the latest policy guidance of the same title. This identifies that
‘Other significant evidence of the durable relationship may include for example evidence of joint responsibility for a child (a birth certificate or a custody agreement showing they are cohabiting and sharing parental responsibility), evidence of shared financial responsibilities or business ventures, or evidence of regular communication and visits while living apart alongside definite plans concerning the practicalities of living together in the UK’.
13. The judge made findings under the Matrimonial Causes Act 1973 as to the validity of the Moroccan ‘marriage’ which may have been open to him in relation to the validity of the marriage but, in the circumstances in relation to a durable partnership, to dismiss the ‘family registration book’ and state that it ‘adds nothing to the evidential matrix as the views of the Moroccan authorities as to the validity of the marriage is not relevant’ is not adequately reasoned, particularly in the light of the existence of the children, who were born sequentially in 2012, 2014 and 2016, the policy guidance, the travel trips which predated the birth of the children and which were ongoing and the fact that the appellant lived in the family home.
14. Although the judge challenged the evidential value of the WhatsApp messages and video calls at [21] in part on the basis of the identity of the phone ownership, this is not adequately reasoned bearing in mind it is not challenged that the children are those of the appellant and sponsor. Challenge in relation to this point should have been put directly to the sponsor.
15. Overall, it is not clear that the decision would have been the same had the errors identified not been made and I find the errors to be material.
Notice of Decision
The Judge erred materially for the reasons identified. We set aside the decision pursuant to Section 12(2)(a) of the Tribunals Courts and Enforcement Act 2007 (TCE 2007). Bearing in mind the nature and extent of the findings to be made the matter should be remitted to the First-tier Tribunal under section 12(2) (b) (i) of the TCE 2007 and further to Begum (Remaking or remittal) Bangladesh [2023] UKUT 46 (IAC) owing not only to fundamental nature of the findings to be made but also to the procedural error.

Directions
Any further evidence is to be filed with the First-tier Tribunal and served on the Home Office no later than 21 days before the substantive hearing.
The appellant’s representative is to advise as to whether any witness requires an interpreter.


Helen Rimington

Judge of the Upper Tribunal Rimington
Immigration and Asylum Chamber


7th March 2025