Senayt Okubay Fetle v The Entry Clearance Officer, Nairobi

For paragraph 352AA(ii) of the Immigration Rules, the requirement that parties have been living together in a relationship akin to marriage or civil partnership which has subsisted for two years or more requires a relationship that has subsisted for that period. It does not require two years of cohabitation.

The relationship must nevertheless be subsisting at the relevant date. Minimal cohabitation may prevent a claimed marriage-like relationship from being established as subsisting. A separate express requirement that the relationship is subsisting remains material. The different wording of Appendix FM, GEN 1.2(iv), does impose a two-year cohabitation requirement.

The appellant, an Eritrean national, applied for entry clearance to settle in the United Kingdom with her refugee sponsor. Although she had undergone a marriage ceremony with him, the claimed marriage was unregistered. Before the First-tier Tribunal she therefore relied on paragraph 352AA of the Immigration Rules as the sponsor’s unmarried partner.

The First-tier Tribunal dismissed the appeal. It held that the parties had not lived together for two years and that discrepancies in their evidence, together with very limited evidence of contact after the sponsor left Eritrea, showed that the relationship was not genuine and subsisting. The appellant appealed to the Upper Tribunal on the construction of paragraph 352AA and on the treatment of witness evidence, and also relied on article 8 of the ECHR.

1. Appeal dismissed. The First-tier Tribunal erred in treating paragraph 352AA(ii) as requiring two years’ cohabitation. The phrase requires that the parties have lived together in a marriage-like or civil-partnership-like relationship and that the relationship has subsisted for two years or more. The words which has subsisted attach the specified period to the relationship, rather than to cohabitation.

2. The construction was supported by the separate function of subsistence in the rule. Separation caused by employment or flight from a country does not necessarily end a relationship. Conversely, where cohabitation has been minimal, the evidence may be insufficient to establish that the relationship is subsisting. Appendix FM, GEN 1.2(iv), uses different language and expressly requires living together for at least two years before the application.

3. The error was not material. Paragraph 352AA(v) expressly required a subsisting relationship, and paragraph 352AA(ii) also required one by its use of the present-perfect tense. The First-tier Tribunal was entitled to find that the relationship was not subsisting at the date of decision. The additional witnesses gave little assistance on that issue, and the sparse evidence of contact and material discrepancies provided no proper basis for impugning that finding.

4. The article 8 claim also failed. In the absence of credible evidence that the claimed relationship subsisted at the decision date, refusal of entry clearance was not shown to be a disproportionate interference with either party’s family life.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appellant’s appeal, while holding that the First-tier Tribunal had misconstrued paragraph 352AA(ii) of the Immigration Rules. The error was immaterial because the finding that the relationship was not subsisting was sustainable.
• First-tier Tribunal: dismissed the appeal against refusal of entry clearance. It found that the appellant did not meet paragraph 352AA and that the claimed relationship was not genuine and subsisting.