Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000113

First-tier Tribunal No: EU/50092/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

02nd June 2025

Before

UPPER TRIBUNAL JUDGE JACKSON
DEPUTY UPPER TRIBUNAL JUDGE FROOM

Between

MIHAELA-IONELA PAPA
(NO ANONYMITY ORDER MADE)
Appellant
and

THE ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: None
For the Respondent: Mr B Hulme, Senior Home Office Presenting Officer

Heard at Field House on 15 May 2025

DECISION AND REASONS
1. The Secretary of State appeals with the permission of the Upper Tribunal against a decision, dated 14 November 2024, of a Judge of the First-tier Tribunal sitting in Birmingham (“the judge”) allowing the appeal brought by Ms Papa against a decision refusing her application under the EU Settlement Scheme (“EUSS”).
2. For convenience, we shall refer to the parties as they were before the First-tier Tribunal.
3. The First-tier Tribunal did not make an anonymity order and we saw no reason to make one either.
The factual background
4. The appellant is a citizen of Romania born on 15 February 2003. She arrived in the United Kingdom in November 2021 in order to join her partner, Mr Ioan-Petru Papa, who is also a Romanian citizen and who has settled status in the United Kingdom. The appellant did not obtain entry clearance before she travelled. She married Mr Papa on 26 August 2023 in Romania. On 4 October 2023 she applied in-country for leave to remain under the EUSS. However, her application was rejected and she appealed to the First-tier Tribunal.
5. The respondent’s reasons for refusing the application are not the clearest but they focused on paragraphs EU11, EU11A, EU14 and EU14A of Appendix EU to the Immigration Rules. It was noted the appellant’s spouse did not hold a relevant document. Nor was there sufficient evidence showing the appellant had been in a durable relationship with Mr Papa for two years prior to 23:00 GMT on 31 December 2020 (the ‘specified date’). The appellant appealed.
6. At the hearing in the First-tier Tribunal, the appellant attended unrepresented, as she did before us. The judge appears to have proceeded on the basis that the determinative issue was whether the appellant and Mr Papa had been in a durable relationship for two years. She allowed the presenting officer to withdraw a concession contained in the respondent’s review to the effect that the couple had been in a durable relationship. Paragraph 10 of the review had stated that the respondent accepted the relationship was formed and was durable before the specified date but maintained there was no evidence it remained durable at the date of application, as there was no evidence of cohabitation. It is possible that the presenting officer’s withdrawal of that limited concession distracted the judge from earlier passages in the review in which the respondent argued the appellant could not benefit from the Withdrawal Agreement. The case of Halil Celik v SSHD [2023] EWCA Civ 921 was cited in support of the proposition that a durable partner whose residence had not been facilitated by the issue of a relevant document, either before the specified date or by way of an application made before that, was not in the scope of the Withdrawal Agreement. This submission was not addressed at all in the judge’s decision.
7. The judge made positive findings regarding the existence of a durable relationship, relying on a passage in the respondent’s own guidance which stated that, in some circumstances, there may be evidence of a durable relationship akin to marriage where the couple have not lived together. The judge found they had not lived together in Romania because of their cultural and religious beliefs but they had maintained a relationship through Mr Papa’s visits to Romania and through social media. We pause to note the appellant only turned 18 on 15 February 2021. The judge found there was a relationship between 2018 and 2020 and that it had become durable by 2020. The judge found it continued until they married and they are currently in a genuine and subsisting marriage.
8. The respondent appealed on the basis the judge’s finding of a durable relationship by 2020 was flawed because she had failed to resolve inconsistencies in the evidence of the appellant and Mr Papa. Furthermore, she had overlooked the fact the appellant had been only 14 or 15 in 2018 and therefore this could not have been a durable relationship akin to marriage at that time.
9. Permission to appeal was refused by the First-tier Tribunal but granted on renewal by Upper Tribunal Judge Canavan. It is helpful to set out her detailed reasons for granting permission to appeal because we consider she has focused on the core issue in this appeal:
“1. The respondent applies in time for permission to appeal the decision of … (‘the judge’) who, in a decision sent on 14 November 2024, allowed the appellant’s appeal against the respondent’s decision to refuse leave to remain under the immigration rules relating to the EU Settlement Scheme. The appeal was brought under The Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 on the ground that the decision was not in accordance with the residence scheme immigration rules.
2. On 31 January 2020 the UK formally exited from the European Union. A transition period was agreed with the European Union, which maintained the provisions of EU law in the UK until 31 December 2020. A person could continue to exercise rights of free movement in the UK and to apply for EEA family permits from abroad until that date. The Withdrawal Agreement (‘WA’) made between the UK and the European Union recognised that it was necessary to protect the rights of Union Citizens and United Kingdom nationals and their respective family members where they had EU law rights before the end of the transition period. The EU Settlement Scheme (‘EUSS’) (‘the residence scheme rules’) was intended to give effect to the provisions contained in the WA. It was designed as a mechanism to grant leave to remain under the domestic immigration rules to those who could establish that they had rights of residence under EU law before the end of the transition period.
3. Provision was made for some flexibility after that date so that a person could still apply to regularise their status or to join relevant EEA citizen family members in the UK. The Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020 9SI 2020/1209) (‘the Grace Period Regulations 2020’) specified 30 June 2021 as the deadline by which applications for residence status should be made under the EUSS immigration rules. This was an extension of time to make an application for leave to enter or remain but not an extension of time to establish EU law rights of residence. Rights of residence under EU law still came to an end on 31 December 2020.
4. I note that the original appellant, Ms Papa, was not legally represented. There is no witness statement and little information about the exact course of events. However, it is possible to discern from the First-tier Tribunal decision that she arrived in the UK in November 2021. It is unclear whether she entered with or without appropriate entry clearance given that she arrived after the United Kingdom had left the European Union. The untranslated copy of a Romanian marriage certificate suggests that she married her husband in Romania on 26 August 2023. It is unclear on what basis she returned to the UK. The application for leave to remain under the EU Settlement Scheme was not made until 04 October 2023, well outside the grace period. Although no copy of the application form appears to have been before the First-tier Tribunal it does not appear to have been an application for entry clearance as a ‘joining family member’. If the appellant applied after having already entered the UK it is difficult to see how she could have shown that she had established rights of residence as a ‘durable partner’ with her now husband prior to 31 December 2020.
5. On the facts of this case, it is unclear on what proper legal basis the parties could have agreed, as stated by the judge at [20], that the appeal could be allowed based solely on a finding that there was a ‘durable relationship’. There must be some limitations to the principles outlined in Lata (FtT: principal controversial issues) [2023] UKUT 00163 in circumstances where the issues identified might arguably be wrong on a proper reading of the relevant law.
6. Although the respondent’s grounds of appeal are not clearly particularised and tend towards general submissions it is at least arguable that there may be errors of law in the judge’s findings relating to whether there was a ‘durable relationship’ before 31 December 2020. The more obvious point might have been with reference to the binding Court of Appeal decision in Celik v SSHD [2023] EWCA Civ 921, which was pleaded in the Respondent’s Review, but was not addressed at all by the Firs-tier Tribunal. Nevertheless, it is at least arguable that the judge failed to take into account other considerations that might have been relevant to the assessment.
7. Permission to appeal is granted.”
The submissions
10. Mr Hulme elaborated on the respondent’s grounds seeking permission to appeal. He said the judge had not addressed the appellant’s evidence that the relationship had not become serious until 2019. It had been the appellant’s own evidence that they could not live together as a couple. The appellant was only a child in 2018 so could not have begun a serious relationship then.
11. Mr Hulme then addressed us on the Celik point. The appellant had not been issued with a relevant document. The decision relied on by the judge, Hani (EUSS durable partners: para (aaa) [2024] UKUT 0068 (IAC), made the same point in the first headnote:

“The effect of paragraph (b)(ii)(bb)(aaa) of the definition of “durable partner” in Annex 1 of Appendix EU to the Immigration Rules, as inserted by Statement of Changes HC 813 (from 31 December 2020 to 11 April 2023), 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” of 31 December 2020 at 11.00PM, is incapable of meeting the definition of “durable partner”.”
12. At our invitation, Mr Hulme also took us to the following passage from the judgment of Lewis LJ in Celik:
“35. In short therefore, a person would be able to claim limited leave to remain as the family member of an EU national if (a) the person married an EU national before the end of the transition period or (b) was in a durable relationship and that relationship was evidenced by the grant of a relevant document, including a residence card issued under regulation 18 of the Regulations. We have been provided with a copy of the application form used for applications for leave to remain under the EUSS and were told that that form only required the provision of the limited information required to establish whether the person was entitled to leave to remain under the provisions of the EUSS, that is, whether the applicant was in possession of one of the relevant documents.
36. In broad terms, from 30 March 2019 until the end of the transition period on 31 December 2020, an EU national or a family member could apply under either the Regulations for a registration certificate or a residence card or for limited or indefinite leave under the EUSS if he or she qualified under the EUSS. A durable partner applying for leave to remain under the EUSS would, however, have to have been provided with a residence card under regulation 18 of the Regulations first as, otherwise, the person would not have the "relevant document" required by the provisions of EU14 of the Appendix.”
13. The appellant replied. She had already helpfully uploaded a letter setting out her general position. This states as follows:

“To the Honourable Members of the Tribunal,

I respectfully submit this statement in support of my appeal concerning the refusal of my EU Settlement Scheme application.

I arrived in the United Kingdom in November 2021 to live with my partner, now my husband. I applied for status under the EU Settlement Scheme, but my application was refused. Following the refusal of my second application dated 4 October 2023 (decision issued on 27 December 2023), I submitted an appeal to the First-tier Tribunal. All relevant documentation has been submitted to the Home Office and is now held by the Upper Tribunal. I do not have any additional evidence to provide at this time.

My relationship with Ioan, my husband, began in 2018. At that time, he was living in the UK while I was still residing in Romania. I was a minor when we started our relationship, and Ioan is seven years older than me. Despite the difficulties of a long-distance relationship, we maintained daily contact via Messenger and WhatsApp, and we met in person whenever possible. My parents were supportive of our relationship from the beginning.

As a minor, I did not have a bank account in my name, which meant that Ioan was unable to provide financial support directly. After I turned 18 and completed high school, I earned my Baccalaureate diploma and then moved to the UK to live with Ioan. We have been living together as a married couple since then.

We have been in a genuine and durable relationship from the beginning, even though I was underage at the time it began. I would also like to clarify a point noted during the cross-examination. It was recorded that I stated my husband has pre-settled status. This is incorrect – I never made such a statement. My husband has settled status, which can be verified.

There were no discrepancies between our statements during the application or appeal process, as we have always spoken the truth. We were not able to live together permanently until November 2021, except when Ioan visited Romania. Any perceived inconsistencies may stem from cultural and religious factors. Until I reached the age of majority, we could not live together alone or engage in a sexual relationship due to religious beliefs. We only stayed together at our parents’ homes. After I turned 18 and completed my education, we were able to move in together in the UK with the support of our families.

We were in a committed relationship for several years before our marriage. We married out of love and now wish to build a family, have children, and continue living a peaceful and happy life in the UK. My husband has been a law-abiding resident in the UK for many years, and I am proud to be his wife.

I place myself at the mercy of the Tribunal and humbly ask you to consider our appeal with compassion and fairness. We are model citizens, with no criminal record, who wish to contribute to society, build a life, and raise a family in the United Kingdom – a country we now call home.

Thank you for your time and consideration.”
14. With the assistance of a Romanian interpreter, the appellant clarified that her husband had settled status, not pre-settled status, as recorded by the judge. She confirmed to us that she had entered the United Kingdom as a visitor and she had not gone to the British Embassy to secure entry clearance before travelling. She had provided all the evidence she could regarding the genuineness of the relationship but she had not been able to open a bank account due to being a minor. She stayed in Romania to finish her studies. Her husband had been in the United Kingdom for ten years. Their parents had been supportive of the relationship, when it started in 2018 despite the age gap. She did not understand why her appeal had not been allowed. They had always planned to marry.

Decision on error of law
15. Having heard the parties, we were able to explain our decision to the appellant. We were perfectly satisfied that she had her husband are in a genuine and subsisting relationship. Mr Papa attended the hearing with the appellant. He had given evidence in the First-tier Tribunal.
16. As seen, the respondent’s only challenge to the evidence was when the relationship had “turned serious”, noting discrepancies in the evidence as between the appellant and Mr Papa and the appellant’s age in 2018. We share the respondent’s concerns about the adequacy of the judge’s finding as to whether there could properly be said to have been a durable relationship between 2018 and 2020 but we do not find it necessary to decide the point. That is because the appellant’s appeal could not have succeeded once it was established that she had made her application in-country and she did not have a relevant document. Her application had been made after the end of the specified period and she could not succeed under the EUSS. Even if the judge had been correct in her assessment of the durable relationship, the appeal should not have been allowed on that basis.
17. Paragraph EU14 of Appendix EU to the Immigration Rules as at 27 December 2023 set out the eligibility requirements for limited leave to remain as, inter alia, the “family member of an EEA national”. Similarly, paragraph EU14A of Appendix EU that an applicant would meet the eligibility requirements for limited leave as a “joining family member of an EEA national” where the respondent was satisfied by the required evidence that, at the date of application and in an application made after the specified date, certain conditions or definitions were met. For either provision, the appellant needed to show she was either a “family member of an EEA national” or “a joining family member of a relevant sponsor”, as defined in the Annex to the rules.
18. The definitions for a “family member of an EEA national” and “joining family member of a relevant sponsor” in the Annex both refer to the requirement (so far as relevant to this appeal) to be a “durable partner” as also defined in the Annex to Appendix EU, both at the specified date and which remained durable at the date of application.
19. A durable relationship is defined as one in which the couple had been living together in a relationship akin to marriage or civil partnership for at least two years unless there is other significant evidence of the durable relationship, and, the person holds a relevant document as the durable partner of the relevant EEA citizen for the period of residence relied upon. A relevant document is in essence one issued by the UK authorities, such as an EEA Residence Card, which the appellant does not have, nor had she ever applied for one.
20. There are exceptions to the requirement to hold a relevant document for a person applying as a “joining family member” only where the date of application is after the specified date and where the applicant was resident in the United Kingdom at some point before the specified date. In the present case, the appellant had not been resident at all in the United Kingdom before 2021, after the specified date such that none of these exceptions could apply to her.
21. The appellant’s lack of a relevant document or residence in the United Kingdom prior to the specified date takes us back to the “obvious point” identified in the grant of permission to appeal by Upper Tribunal Judge Canavan. The appellant can not meet the definition of “durable partner” such that the rules for a grant of leave to remain under the EUSS could not be met in this case. In the alternative, for the reasons given in Celik, the EU Withdrawal Agreement does not assist the appellant either as she had not applied for, nor had her residence been facilitated prior to the specified date.
22. We endeavoured to explain as best we could to the appellant the reason the judge erred and, given there is no factual dispute about the timing of and nature of the application, the appellant’s entry to the United Kingdom, as well as the absence of a relevant document, there was no reason to delay remaking the decision. Only one outcome was rationally possible. We therefore announced to the parties that we would remake the decision by dismissing the appeal.

Notice of Decision

The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law and the decision of the First-tier Tribunal is set aside.

A decision is substituted dismissing the appeal of Ms Papa.

Signed
N Froom

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

Dated 29 May 2025