Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-002643

First-tier Tribunal No: EU/50816/2024
LE/00320/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 12 September 2025

Before

UPPER TRIBUNAL JUDGE REEDS

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MIHAELA BUTNARU
(NO ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Mrs M. Butnaru in person
For the Respondent: Mr Tan, Senior Presenting Officer

Heard at Phoenix House (Bradford) on 20 August 2025

DECISION AND REASONS
1. The Secretary of State appeals with permission against the decision of the First-tier Tribunal(Judge Monaghan ) (hereinafter referred to as the “FtTJ”) who allowed the appeal against the decision made to refuse her application under the EU Settlement Scheme in a decision promulgated on 13 February 2025. .
2. The First-tier Tribunal did not make an anonymity order and no grounds have been advanced on behalf of the appellant to make such an order.
3. Although the appellant in these proceedings is the Secretary of State, for convenience I will refer to the Secretary of State for the Home Department as the respondent and to the appellant before the FtT as “the appellant,” thus reflecting their positions before the First-tier Tribunal.
The background:
4. The background to the appeal is set out in the evidence and in the decision of the FtTJ. The appellant is a citizen of Romania. On 24 October 2023, the appellant made an application under the EU Settlement Scheme as the spouse and/or durable partner of the sponsor, a Romanian national. She had lived in Romania and had married her spouse, who had been resident in the UK who prior to 31 December 2020 and was also a national of Romania, on 10 June 2023. On 13 October 2023 she arrived in the UK and made an application under the EU Settlement Scheme (“EUSS”) for leave to remain.
5. On 19 January 2024, the appellant’s application was refused under the provisions of Appendix EU. The decision set out that she had stated in her application that she was the spouse of a relevant sponsor but had provided insufficient evidence to confirm this. The decision letter set out that the relevant evidence for the relationship of a spouse is a valid registration certificate, family permit or residence card or a valid marriage certificate. It was stated that she had not provided any documentation therefore she did not meet the requirements for settled status as a joining family member of a relevant sponsor. Consideration was given to whether the appellant met the eligibility requirements for pre-settled status under the EUSS (EU14 or EU 14A), but the respondent concluded that she had provided no evidence to confirm that she was the spouse of a relevant sponsor and therefore had not demonstrated that she met the eligibility requirements for pre-settled status. Reference was made to having attempted to contact her by telephone between 18 December 2023 -6 January 2024 to ask for specified evidence to be provided but none had been subsequently sent.
6. The appellant appealed that refusal. The appeal was heard by FtTJ Monaghan on the 10 February 2025. The appellant was not represented at the hearing. She attended at the hearing along with her spouse and his cousin although only the appellant gave evidence. Additionally the appellant provided documentary evidence for the hearing which had not been uploaded to the electronic file nor had it been sent to the respondent either for the purposes of the application or the appeal. The FtTJ admitted the evidence and the Presenting Officer was able to consider it on the day of the hearing. Having heard the evidence, the FtTJ set out her findings of fact between paragraphs 17-26 as follows:
“17. I find that the Appellant is a credible witness who has provided a consistent and reasonably detailed account of her relationship with Nicolae Butnaru, supported by additional documentary evidence. I have no real reason to doubt her evidence.
18. At page 26 of the stitched bundle she has provided a detailed account of her relationship with Nicolae Butnaru, her EEA sponsor.
19. I find therefore that she met him in Romania in 2017 when both were studying at the same institution. At first they both lived in the same dormitory but on 15h October 2017 they moved together into a rented apartment whose address she has provided. From 2018 she considered herself to be in a cohabiting relationship with her sponsor. They jointly paid all the bills and rent for the apartment to the Landlord. On 19th November 2019 the Appellant and her sponsor finished their studies and moved together to Bucharest were they continued to live together. Again the full address of the apartment has been provided. Once again they jointly paid the rent, electricity, gas, water and communal service bills.
20. The Appellant was not able to visit her partner in 2020 due to the pandemic. She therefore decided to apply for further studies. From 2020 until 2023 she studied and qualified as a General Nurse. The relationship with her sponsor continued and remained durable to the extent that her sponsor supported the Appellant financially during this period of study. On completing her studies, sadly the Appellant’s mother became ill, suffering from cervical cancer which became terminal. As she required palliative care, the Appellant had to travel to Moldova to care for her.
21. The Appellant has provided two receipts from the landlords of both apartments which were rented as a couple in Romania. The receipts are signed and translated. The first receipt shows that the Appellant and sponsor together paid rent for the apartment from 19th November 2019 until 21st October 2023. The second receipt shows that the Appellant and sponsor together paid rent for a second apartment from 15th October 2017 until 15th October 2018. These documents are further support for a finding that the couple have been in a longstanding and durable relationship which commenced and continued before the specified date.
22. I also now have before me a marriage certificate showing that the Appellant and the sponsor were married in Romania on 10th June 2023, together with a letter from the Mayor of the Appellant’s home area confirming that he is aware that the Appellant and sponsor have been in a cohabiting relationship since 2018 and were married on the date stated. The Appellant was cross examined about the letter from the Mayor. Her evidence was that whilst the Mayor had not directly visited her house he had passed by regularly and observed her with the sponsor. Further that he would have the information from the mayoral records in any event. I find that this is a reasonable explanation and I do therefore place some weight on the letter from the Mayor.
23. It is clear and I find accordingly based on the marriage certificate which I have no reason to doubt and which was not challenged by Ms Fell that the Appellant married her EEA sponsor on 10th June 2023 in Romania. I find that this is a valid document of record of a marriage and recognised under the law of England and Wales. There is nothing to suggest that it is not so recognised and Ms Fell did not invite me to make a finding to that effect.
24. I therefore find that on the totality of the evidence the Appellant is able to meet the required evidence of family relationship as set out in Annex 1. This is because she has produced a document of record of the marriage (a(i) above) and there is evidence that the durable partnership was formed and was durable before the specified date; it being accepted that the marriage itself was contracted after the specified date (a(ii) above.
25. The Appellant is a family member of the EEA sponsor as she meets the definition of the same : a person who does not meet the definition of ‘joining family member of a relevant sponsor’ in this table, and who has satisfied the Secretary of State, including by the required evidence of family relationship, that they are (and for the relevant period have been), or (as the case may be) for the relevant period (or at the relevant time) they were: (a) the spouse or civil partner of a relevant EEA citizen, and: (i) the marriage was contracted or the civil partnership was formed before the specified date; or (ii) the applicant was the durable partner of the relevant EEA citizen before the specified date (the definition of ‘durable partner’ in this table being met before that date rather than at the date of application), and the partnership remained durable at the specified date.
26. It is clear from my above findings that I accept that the applicant was the durable partner of the relevant EEA citizen before the specified date and the partnership remained durable at the specified date.”
7. The FtTJ therefore allowed the appeal.
The appeal before the Upper Tribunal:
8. The respondent sought permission to appeal and permission to appeal was granted by FtTJ Saffer on 16 June 2025.
9. The written grounds advanced on behalf of the respondent state as follows:
(1) At [26], Judge Monaghan has concluded that the appellant is a durable partner of a relevant EEA citizen pre and post specified date of the 31/12/2020. However, it is submitted that judge has failed to consider the Immigration Rules under Appendix EU11 as set out at [13-14] of the determination. The key parts of the eligibility requirements the appellant is required to fulfil is that she is the family member of a relevant EEA citizen.
(2) Although the appellant produced documents at a late stage which were accepted, there is no evidence to show the appellant’s spouse/sponsor is a relevant EEA citizen that being an EEA citizen who has a continuous qualifying period of residence that began before the specified date – 31 December 2020).
(3) This requirement was set out in the refusal letter under the reasons why the application was refused, which Judge Monaghan has overlooked in their overall findings. There is no evidence from the sponsor regarding exercising treaty rights or any documentation confirming his status. As such the appellant does not meet the eligibility criteria and the decision cannot be relied upon as it is materially flawed.
10. The appeal came before the Upper Tribunal. The appellant appeared in person, and the respondent was represented by Mr Tan , Senior Presenting Officer. The appellant had been asked by the Tribunal prior to the hearing if she required an interpreter and an informed the administration team that she did require the assistance of an interpreter which was provided.
11. The appellant acted in person as she did before the FtT accompanied by her partner and his cousin. She had earlier sent to the Tribunal a witness statement from both of them and attended at the hearing with her documents as she did before the FtTJ. The proceedings were explained to her with the assistance of the court interpreter and she was asked if she required time to either take legal advice or to instruct a legal representative. Having considered this she informed the Tribunal that she did not require a legal representative and that she was content to represent herself as she did before the FtTJ. The appellant confirmed that she had the documents that had been sent on behalf of the respondent along with the documents that she had provided previously before the FtT. The appellant was provided with paper so that she would be able to make any notes that she wished to during the submissions.
12. Before hearing the submissions made on behalf of the respondent I asked the appellant to confirm the basis upon which she entered the UK in October 2023. She confirmed that she had entered the United Kingdom using her passport and that she had not applied for any entry clearance. She referred to her spouse and that he did have settled status in the UK.
13. Mr Tan referred to there being 2 issues relevant to the decision of the to the FtTJ. Firstly, the appellant applied as a partner of a relevant EEA citizen and at no point did the FtTJ establish whether that was the position. Secondly, in relation to paragraphs 25 and 26 of the decision, the FtTJ erred in finding that the appellant met the rules as a durable partner of a relevant EEA Citizen because the judge had not considered the definition of a durable partner in that paragraph 25 did not incorporate the definition set out in Annex 1 or consider what a durable partner consisted of or applied that definition.
14. In relation to the 1st issue, Mr Tan submitted that whilst there had been nothing in the papers before the FtTJ concerning the appellant’s spouse, he stated that he noted from the evidence given by the appellant and also as on the system that her spouse did hold status under the scheme issued on 5 November 2019 -6 November 2024, with overlapping extension from 26 September 2024- 5th of November 2029 and that he was granted settled status on 29 May 2025. Thus her spouse had a grant of pre-settled status at the time of the hearing. He submitted that whilst that information was not before the FtTJ, if the respondent’s case only relied upon that point, any error would not be material. However the respondent had raised the 2nd point as outlined above and that issue would deal conclusively with the appeal.
15. Mr Tan explained the second part of his grounds by reference to the skeleton argument/amendment of the grounds that he had provided and which set out case-law and that the legal issues relevant to this appeal that he submitted were settled by the decision of the Upper Tribunal in Hani v SSHD (EUSS durable partners: para (aaa)) [2024] UKUT 68 (IAC) and subsequently the Court of Appeal in Mustaj v SSHD [2025] EWCA Civ 663 (23 May 2025).
16. He submitted that at paragraph 25 the FtTJ made a finding that the appellant met the definition of “durable partner” on the basis of a historic relationship being evidenced in Romania before and after the specified date of 31 December 2020. Whilst the facts are not in dispute that the appellant arrived in the UK after the specified date and application was made on 24 October 2023, it was the position that she did not hold a relevant document issued by the respondent nor any identifiable form of leave to remain.
17. He relied upon the definition of a “durable partner” in Annex 1 and that it required an applicant to either hold relevant document or in the absence of relevant document where an application was made after the specified date, to have held valid leave to remain for the relevant period at specified date.
18. He relied upon the decision in Hani (as cited above) and its headnote.
19. He submitted that this interpretation of the rule was recently affirmed in Mustaj (as cited) where the Court of Appeal stated, “I also agree that the text covers a broad category of persons (Hani at [26]-[28] in particular, anyone with a durable partnership with a relevant EEA citizen prior to the specified date (and who therefore met the closing words of paragraph (b) (ii) see [25] above) and who was UK resident either lawfully on some different basis (such as a student or work visa), or unlawfully, could fall within it “ ( at paragraph 43).
20. He submitted the FtTJ fell into material error by failing to consider and apply the requirements in line with the above legal authorities.
21. Mr Tan was asked to explain his submission by reference to EUSS and Annex 1. He submitted that applying the definition of “durable partner” began at subsection (a) which the appellant had met on the factual findings made by the FtTJ which were not in issue during this appeal now, but that under subsection (b) (i) this required a relevant document for the period of residence relied on and the appellant in this case did not have a relevant document at any time and therefore could not meet subsection (b) (i). He referred to section (b)(ii) (aa) and the date of the application being after the specified date which she had satisfied but she could not meet (b) (ii) either (bb) and (aaa) because she did not have a relevant document, but also she did not have a lawful stay in the UK before 31 December 2020.
22. He further submitted that whether the relevant provision was EU 11 or EU14 the definition of “durable partner” has to be met and that the FtTJ’s decision was in error as to the timing of the durable relationship and did not consider at what point in time she required a “relevant document”. He submitted therefore she could not meet the requirements.
23. Mrs Butnaru was asked to provide her response. She stated that she had been a durable partner before December 2020 and that she had presented evidence in support of this before the FtTJ. Her oral submissions related to the circumstances of her durable relationship. It was indicated to her that no challenge was made by the respondent to the factual findings made by the FtTJ that related to the durability of the relationship. Mr Tan confirmed that in his submission. Mrs Butnaru also stated that the FtTJ had set out the history of their relationship and that she could not apply at an earlier stage due to her circumstances including covid. She stated that she had been informed that she had to prove her long-term relationship with her spouse and that she had done so by presenting all the evidence.
24. I understood her submissions or her summary to be that she relied upon the decision of the FtTJ and that the FtTJ had not erred in law by allowing her appeal.
Decision on error of law:
25. The FtTJ set out the relevant factual history which is not in dispute and Mr Tan has confirmed that there is no challenge to the factual findings made that concern the history or the durability of the relationship. The essential facts are that the appellant met her spouse in Romania in 2017 and both were studying at same institution. They had lived in the same dormitory but on 15 October 2017 they moved into a rented apartment. From 2018 she considered herself to be in a cohabiting relationship with her sponsor and they jointly paid all the bills and rent for the apartment. In 2019 they finished their studies and moved together to Bucharest where they lived. It is not said what date the sponsor moved to the United Kingdom but it is clear from paragraph 20 of the FtTJ decision that he was in the UK prior to 31 December 2020 as the appellant was not able to visit him due to the pandemic. She applied for further studies and between 2020 until 2023 she studied and qualified as a general nurse and her relationship continued and remained durable with the sponsor. On completing her studies the appellant’s mother became ill which became terminal and required the appellant to travel to care for her (see paragraphs 20 and 21). The appellant and the sponsor were married in Romania on 10 June 2023 and a marriage certificate had been provided, which the FtTJ found was a valid document of the record of marriage. It is recorded that the presenting officer did not invite the judge to make any contrary finding.
26. The relevant provisions are set out below.

Persons eligible for limited leave to enter or remain as a joining family member of a relevant sponsor EU14A.

The applicant meets the eligibility requirements for limited leave to enter or remain as a joining family member of a relevant sponsor where the Secretary of State is satisfied, including by the required evidence of family relationship, that, at the date of application and in an application made after the specified date, the condition set out in the following table is met:

Condition Is met where: (a) The applicant is: (i) a joining family member of a relevant sponsor; or (iii) a family member who has retained the right of residence by virtue of a relationship with a relevant sponsor; and (b) The applicant is: (i) not eligible for indefinite leave to enter under paragraph EU11A of this Appendix, where the application is made outside the UK; or (ii) not eligible for indefinite leave to remain under paragraph EU11A of this Appendix, where the application is made within the UK, solely because they have completed a continuous qualifying period of less than five years which began after the specified date; and (c) Where the applicant is a joining family member of a relevant sponsor, there has been no supervening event in respect of the relevant sponsor.
27. The Annex 1 definitions are set out below:

Joining family member of a relevant sponsor:
a person who has satisfied the Secretary of State, including by the required evidence of family relationship, that they are (and for the relevant period have been), or (as the case may be) for the relevant period (or at the relevant time) they were:
(a) the spouse or civil partner of a relevant sponsor, and
(i)(aa) the marriage was contracted or the civil partnership was formed before the specified date; or
(bb) the applicant was the durable partner of the relevant sponsor before the specified date (the definition of ‘durable partner’ in this table being met before that date rather than at the date of application), and the partnership remained durable at the specified date; and
(ii)(aa) (unless the applicant relies on meeting condition 1 or condition 3 of paragraph EU11A of this Appendix, or on being a family member who has retained the right of residence by virtue of a relationship with a relevant sponsor) the marriage or civil partnership continues to exist at the date of application; or
(bb) (where the applicant relies on meeting condition 1 of paragraph EU11A of this Appendix) the marriage or civil partnership existed for the relevant period; or
(cc) (where the applicant relies on meeting condition 3 of paragraph EU11A of this Appendix) the marriage or civil partnership existed immediately before the death of the relevant sponsor; or
(b) the specified spouse or civil partner of a Swiss citizen; or
(c) the durable partner of a relevant sponsor, and:
(i) the partnership was formed and was durable before the specified date; and
(ii)(aa) (unless the applicant relies on meeting condition 1 or condition 3 of paragraph EU11A of this Appendix, or on being a family member who has retained the right of residence by virtue of a relationship with a relevant sponsor) the partnership remains durable at the date of application; or
(bb) (where the applicant relies on meeting condition 1 of paragraph EU11A of this Appendix) the partnership remained durable for the relevant period; or
(cc) (where the applicant relies on meeting condition 3 of paragraph EU11A of this Appendix) the partnership remained durable immediately before the death of the relevant sponsor; or …….
(d) the child or dependent parent of a relevant sponsor, and the family relationship: (i) existed before the specified date (unless, in the case of a child, the person was born after that date, was adopted after that date in accordance with a relevant adoption decision or after that date became a child within the meaning of that entry in this table on the basis of one of sub -paragraphs (a)(iii) to (a)(xi) of that entry); and (ii) continues to exist at the date of application (or did so for the period of residence relied upon); or
(e) the child or dependent parent of the spouse or civil partner of a relevant sponsor, as described in sub - paragraph (a) above, and all the family relationships: (i) existed before the specified date (unless, in the case of a child, the person was born after that date, was adopted after that date in accordance with a relevant adoption decision or after that date became a child within the meaning of that entry in this table on the basis of one of sub -paragraphs (a)(iii) to (a)(xi) of that entry); and (ii) continue to exist at the date of application (or did so for the period of residence relied upon)

in addition, the person meets one of the following requirements:
(a) (where sub -paragraph (c) or (d) below does not apply) they were not resident in the UK and Islands on a basis which met the definition of ‘family member of a relevant EEA citizen’ in this table (where that relevant EEA citizen is their relevant sponsor) at any time before the specified date; or
(b) (where sub -paragraph (c) or (d) below does not apply) they were resident in the UK and Islands before the specified date, and:
(i) one of the events referred to in sub -paragraph (b)(i) or (b)(ii) in the definition of ‘continuous qualifying period’ in this table has occurred, and after that event occurred they were not resident in the UK and Islands again before the specified date; or
(ii) the event referred to in sub -paragraph (a) in the definition of ‘supervening event’ in this table has occurred, and after that event occurred they were not resident in the UK and Islands again before the specified date; or
(iii) they are the specified spouse or civil partner of a Swiss citizen, and they do not rely on any period of residence in the UK and Islands before the marriage was contracted or the civil partnership was formed; or
(c) (where sub -paragraph (d) below does not apply) where the person is a child born after the specified date or adopted after that date in accordance with a relevant adoption decision, or after the specified date became a child within the meaning of that entry in this table on the basis of one of sub -paragraphs (a)(iii) to (a)(xi) of that entry (with the references below to ‘parents’ in this sub - paragraph construed to include the guardian or other person to whom the order or other provision referred to in the relevant sub-paragraph of (a)(iii) to (a)(xi) of that entry relates), one of the following requirements is met:
(i) both of their parents are a relevant sponsor; or
(ii) one of their parents is a relevant sponsor and the other is a British citizen who is not a relevant sponsor; or
(iii) one of their parents is a relevant sponsor who has sole or joint rights of custody of them, in accordance with the applicable rules of family law of the UK, of the Islands or of a country listed in sub-paragraph (a)(i) of the entry for ‘EEA citizen’ in this table (including applicable rules of private international law under which rights of custody under the law of a third country are recognised in the UK, in the Islands or in a country listed in subparagraph (a)(i) of the entry for ‘EEA citizen’ in this table, in particular as regards the best interests of the child, and without prejudice to the normal operation of such applicable rules of private international law); or
(d) where the person is a child born after the specified date to (or adopted after that date in accordance with a relevant adoption decision by or after that date became, within the meaning of the entry for ‘child’ in this table and on the basis of one of sub-paragraphs (a)(iii) to (a)(xi) of that entry, a child of) a Swiss citizen or their spouse or civil partner (as described in the first sub-paragraph (a) in this entry), the Swiss citizen or their spouse or civil partner is a relevant sponsor

Durable partner:

28. (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); and (b)(i) 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; for the purposes of this provision, where the person applies for a relevant document (as described in sub-paragraph (a)(i)(aa) or (a)(ii) of that entry in this table) as the durable partner of the relevant EEA citizen or, as the case may be, of the qualifying British citizen before the specified date and their relevant document is issued on that basis after the specified date, they are deemed to have held the relevant document since immediately before the specified date;

or (ii) 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:

(aa) the date of application is after the specified date; and (bb) the person: (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 entry for ‘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 (in the former case): - the reason why they were not so resident is that they did not hold a relevant document as the durable partner of that relevant EEA citizen for that period; and - they otherwise had a lawful basis of stay in the UK and Islands for that period; or
(bbb) was resident in the UK and Islands before the specified date, and one of the events referred to in sub-paragraph (b)(i) or (b)(ii) of the entry for ‘continuous qualifying period’ in this table has occurred and after that event occurred they were not resident in the UK and Islands again before the specified date; or
(ccc) was resident in the UK and Islands before the specified date, and the event referred to in sub-paragraph (a) of the entry for ‘supervening event’ in this table has occurred and after that event occurred they were not resident in the UK and Islands again before the specified date,
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; and

(c) it is, or (as the case may be) for the relevant period was, not a durable partnership of convenience; and
(d) neither party has, or (as the case may be) for the relevant period 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 in addition, to meet condition 6 in the table in paragraph EU11 of this Appendix (or condition 3 in the table in paragraph EU11A), the above requirements are to be met with reference to the period immediately before the death of the relevant EEA citizen (or, as the case may be, of the relevant sponsor) rather than to the date of application.
29. Having considered the submissions made on behalf of the respondent and in the context of the material and the decision of the FtTJ I have concluded that there were a number of difficulties with this appeal from the outset. Firstly, the respondent refused the application on the basis that the appellant had not provided the required evidence of the family relationship of being the spouse of the relevant sponsor, that is, a valid marriage certificate. The decision letter expressly stated, “you have not provided any evidence to confirm you are the spouse or civil partner of a relevant sponsor therefore do not meet the requirements for settled status under EU 11/EU11A pre-settled status under EU14/EU14A”.
30. The respondent’s review dated 26 November 2024 relied upon this reasoning (see page 7) and therefore set out the respondent’s position that the appellant did not meet the eligibility requirements. This was based on the position that none of the documents referred to in the decision had been served upon the respondent by the appellant and at paragraph 8 this referred to a marriage certificate.
31. It is clear from reading the decision that prior to the appeal the appellant attempted to upload documents but was not able to do so (see paragraphs 4 – 6 of the FtTJ’s decision) and therefore brought copies of the documents including the marriage certificate to the hearing (see paragraph 6(i))). The FtTJ was therefore in the position of having an appeal before her brought by an appellant acting in person and who had provided documents at a late stage and the original decision had been made without reference to any documentation. There was no meaningful respondent’s review, and it is not clear whether the FtTJ was provided with the correct legal framework which applied to these particular circumstances.
32. In any event the FtTJ heard the evidence from the appellant and considered the documentation that she had provided and ultimately found that she was satisfied that the appellant was a credible witness who provided a consistent and reasonably detailed account of her relationship with the sponsor which was supported by additional documentary evidence. She concluded that she had “no real reason to doubt the evidence“ ( see paragraph 17) and she therefore made her factual findings based on that evidence and concluded that she had been able to meet the required evidence of family relationship as set out in Annex 1 as she had provided the valid marriage certificate. The FtTJ also found that there was evidence that the durable relationship was formed and was durable before the specified date ( see paragraph 24). The FtTJ found that she had met the definition of being a “family member of the EEA Sponsor” and concluded that the appellant was durable partner of the relevant EEA citizen before the specified date and the partnership remained durable at the specified date and thus the appellant met the requirements for leave under Appendix EU.
33. However the issue arises as to whether the FtTJ applied the correct eligibility requirements. The FtTJ set out EU11 in her decision which relates to indefinite leave to remain. That does not appear to be the basis upon which the appellant applied given her length of residence from 2023. Thus the FtTJ began on the wrong footing. Also the FtTJ did not recognise on the facts of the appeal as she had found them, that the basis upon which the application was or should have been considered was the application havening been made on the basis as a “joining family member of a relevant sponsor”. Having looked at the respondent’s grounds of challenge to the Upper Tribunal they refer to this stating,” on 24 October 2023 the appellant applied for leave under EUSS as the joining family member of an EEA citizen. The appeal was refused in a decision dated 19 January 2024.” The grounds themselves do not take issue with the factual circumstances of the appellant and the sponsor as being in a durable relationship which was formed and was durable before specified date and which continued after the specified date and as at the date of the application but identified that the error which it is said the FtTJ had made related to whether or not the sponsor was a relevant EEA citizen. I note that whilst the grounds refer to that matter being set out in the decision letter (see paragraph 3 of the grounds) the decision letter did not refuse the application on that basis but on the basis that the appellant had not provided evidence of her marriage as a spouse.
34. At the hearing Mr Tan on behalf of the respondent set out that he had seen a copy of the settled status of the appellant’s husband and that at the time of the decision he had pre-settled status . He therefore did not seek to argue that ground on the basis that any error would not be material but sought argue on the basis as set out above that the appellant could not succeed in law because she did not have a relevant document or lawful leave.
35. Having considered his submissions, I am not satisfied that they are correct. For the reasons set out earlier on the facts as they were before the FtTJ the application made should have been treated as an application made as “joining a family member of a relevant sponsor” under EU14A. The appellant had never lived in the UK before the specified date and factual findings made by the FtTJ which are not challenged by the respondent were that the FtTJ found that the parties were in a durable relationship prior to the specified date and on and after the specified date. Whilst the decisions cited by Mr Tan refer to the general principle that an applicant for a grant of status under the EUSS as a durable partner must hold a relevant document, the definition makes it clear that there are exceptions. The first exception is that an applicant is exempt from holding a relevant document where the applicant can show that they had lawful leave to enter or remain in the UK at the same time as they were in, or in the process of forming a durable relationship with an EEA national sponsor. Whilst Mr Tan relied upon the decisions of Hani and Mustaj ( as cited above) the factual circumstances of those appellants were in a different category. Both were living in the United Kingdom unlawfully and the issue was whether in those circumstances they were able to benefit from the exemption. The Tribunal found that when applying clause (aaa) the applicant came within the scope of “the first half criteria” but that the effect of the “unless“ clause excluded a migrant who was not in the United Kingdom lawfully from benefiting from the first half criteria. The second exemption from requiring a relevant document is where the applicant was not residing in the United Kingdom or islands prior to the specified date as a durable partner. This is set out in the first part of paragraph (aaa) “ was not resident in the UK and Ireland is the durable partner of the relevant EEA citizen (where that relevant EEA citizen is there relevant sponsor) and such an applicant, unlike those who are illegally in the UK, are not excluded as beneficiaries by the second half criteria of paragraph (aaa).
36. The relevant factual circumstance that apply on the facts of this particular appeal is that the basis of the application was not made on her residence in the UK prior to the specified date or in other words she was not applying as a person who had been in the UK prior to the specified date without lawful leave to enter or remain but as someone who had been lawfully residing in Romania and had joined her spouse with whom she had been in a durable relationship prior to and after the specified date. In other words, she did not require a relevant document because she was not applying as a durable partner whose relationship was formed in the UK. In those circumstances the appellant was not required to hold a relevant document but was required to demonstrate that she had been in and had formed a durable relationship with the relevant sponsor before the specified date and that the relationship was durable after that date which is what the FtTJ had found on the facts of the appeal.
37. For those reasons, the respondent’s grounds are not made out and therefore the decision of the FtTJ was not wrong in law to allow the appeal.

Notice of Decision
The decision of the First-tier Tribunal did not involve the making of an error on a point of law and the decision of the FtTJ to allow the appeal stands.

Upper Tribunal Judge Reeds
Upper Tribunal Judge Reeds

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