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Mustaj v Secretary of State for the Home Department
Factual and Procedural Background
This appeal concerns the interpretation of a specific paragraph within the EU Settlement Scheme (EUSS), part of Appendix EU to the Immigration Rules. The EUSS allowed certain EU, EEA, and Swiss nationals resident in the UK before the end of the EU exit transition period, and some of their family members, to obtain immigration status aligned with the Withdrawal Agreement.
The Appellant, an Albanian national who entered the UK illegally in 2017 and remained without leave, began a relationship with a Romanian national who had pre-settled status under the EUSS. They cohabited from November 2020, got engaged, and married in April 2021. The Appellant applied for limited leave to remain under the EUSS shortly after marriage, but his application was refused.
It was undisputed that because the marriage occurred after the transition period ended (31 December 2020), the Appellant needed to demonstrate that he was the "durable partner" of the relevant EEA citizen before that date. The Secretary of State contended he did not meet this definition. Both the First-tier Tribunal (FTT) and the Upper Tribunal (UT) agreed with the Secretary of State. The Appellant obtained permission to appeal to the Court of Appeal.
The primary legal dispute centers on the correct interpretation of paragraph (b)(ii)(bb)(aaa) of the durable partner definition in Annex 1 to Appendix EU, which was considered by the UT but not the FTT. The Secretary of State argued that this paragraph excludes the Appellant because he lacked a lawful basis to stay in the UK before the specified date. The Appellant's fallback position was that, even if the Secretary of State's interpretation was incorrect, the couple did not form a durable partnership by the specified date. The Appellant needed to succeed on both grounds to win the appeal.
Legal Issues Presented
- What is the correct interpretation of paragraph (b)(ii)(bb)(aaa) of the durable partner definition in Annex 1 to Appendix EU?
- Did the Appellant meet the requirement of being a durable partner before the specified date, considering the evidence including that post-dating the specified date?
Arguments of the Parties
Appellant's Arguments
- Paragraph (b)(ii) applies where the person does not hold a relevant EEA document, so its provisions must be read in that context.
- Paragraph (aaa) sets positive criteria that must be satisfied to meet the definition, consisting of three parts:
- The person was "not resident in the UK as the durable partner" of the relevant EEA citizen (negative phrasing).
- The person did not hold a relevant document as the durable partner for the relevant period.
- The person did not otherwise have a lawful basis of stay in the UK for that period.
- Since the Appellant was resident as a durable partner, he did not satisfy the first part, but because he lacked a residence card and had no lawful basis of stay, he met the second and third parts, thus satisfying paragraph (aaa).
- The overall architecture of the rules supports that paragraph (aaa) applies if the only reason for not being resident as a durable partner was the absence of a relevant document, avoiding redundancy.
Secretary of State's Arguments
- Paragraph (aaa) sets a narrow exception to the strict requirement of holding a relevant document to qualify as a durable partner resident in the UK before the transition period ended.
- The exception applies only to those who had an alternative lawful basis of stay, such as a student or work visa, and not to those without lawful status.
- Persons without lawful status who do not hold a relevant document cannot satisfy paragraph (aaa).
- The Appellant, having no lawful basis of stay, fails to meet the definition of durable partner under paragraph (aaa).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Mahad v Entry Clearance Officer [2009] UKSC 16 | Principles of interpreting Immigration Rules sensibly according to natural and ordinary meaning, reflecting administrative policy. | Court applied the principle that Immigration Rules must be construed objectively from language used, not by reference to subjective intentions or guidance. |
| Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586 | Authority for courts correcting clear drafting errors in legislation within limits. | Court acknowledged power to correct obvious drafting mistakes in Immigration Rules, applying it to interpretation of paragraph (aaa). |
| Hoque v Secretary of State for the Home Department [2020] EWCA Civ 1357 | Example of correcting drafting errors in Immigration Rules. | Supported approach that Immigration Rules can be interpreted to correct drafting errors consistent with underlying intention. |
| Pokhriyal v Secretary of State for the Home Department [2013] EWCA Civ 1568 | Limitation on reliance on published guidance to resolve ambiguity in Immigration Rules. | Court noted guidance favorable to applicants may be relied on, but not to resolve ambiguity in Secretary of State's favor. |
| Celik v Secretary of State for the Home Department [2023] EWCA Civ 921 | Context on legislative background and obligations under EU Directive and Withdrawal Agreement. | Court found Celik did not address the interpretation of paragraph (aaa), thus it could not assist on that issue. |
| Secretary of State for the Home Department v Kabir (UI-2022-002538) | Described paragraph (aaa) as "simply unclear". | Referenced as illustration of problematic drafting causing difficulty in interpretation. |
| Secretary of State for the Home Department v Alijaj (UI-2022-003601) | Described paragraph (aaa) as "close to being impenetrable". | Used to highlight drafting problems in Appendix EU. |
| Elais v Secretary of State for the Home Department [2022] UKUT 300 (IAC) | Use of post-specified date evidence as part of evidential landscape for durable relationship. | Court accepted that events after the specified date may provide evidence of prior durable relationship but are not determinative. |
Court's Reasoning and Analysis
The court began with well-established principles for interpreting Immigration Rules, emphasizing a sensible construction based on the natural and ordinary meaning of the language, reflecting the Secretary of State’s administrative policy but discerned objectively from the text (Mahad).
The court acknowledged the poor and complex drafting of Appendix EU, particularly paragraph (aaa), which had been described as unclear or impenetrable in prior cases (Kabir, Alijaj). Despite this, the court sought to interpret the paragraph according to its language rather than policy considerations.
Paragraph (aaa) contains two parts: the first states that a person was not resident "as the durable partner" on a basis meeting the family member definition before the specified date; the second part, introduced by "unless," provides a limited exception if the person did not hold a relevant document and had no other lawful basis of stay.
The court rejected the Appellant’s interpretation that the paragraph should be read positively to include persons without lawful status who lacked a residence card. Instead, it found the natural meaning to be that persons without lawful basis of stay cannot satisfy paragraph (aaa), even if they were in a durable relationship.
This interpretation was supported by the logic that the Secretary of State’s construction avoids an absurdity whereby illegal residents would be favored over those with lawful status. It also aligns with a purposive approach consistent with the Withdrawal Agreement.
The court noted that the Appellant’s reliance on the revised version of paragraph (aaa), introduced after the relevant period, was not legally relevant to interpreting the original version. However, the court observed that the revised version introduced a drafting error contrary to its intended clarification, which the court would correct in line with the Inco Europe principle.
Given the conclusion that paragraph (aaa) excludes persons without lawful status, the court found it unnecessary to resolve the factual question of whether the durable relationship existed before the specified date (ground 1), though it made observations on the meaning of "durable relationship" and the admissibility of evidence postdating the specified date.
Holding and Implications
The Court of Appeal DISMISSED the appeal.
The holding is that a person without a lawful basis of stay in the UK cannot fall within paragraph (b)(ii)(bb)(aaa) of the durable partner definition in Annex 1 to Appendix EU, and therefore cannot qualify as a family member under the EU Settlement Scheme. Consequently, the Appellant was not entitled to limited leave to remain under the EUSS.
No new precedent was set beyond the interpretation of the specific paragraph in the Immigration Rules. The decision directly affects the parties by affirming the refusal of the Appellant’s application. The judgment also highlights ongoing issues with the poor drafting of Appendix EU and endorses calls for reform to improve clarity and accessibility of immigration law.
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