Secretary of State for the Home Office v Waleed Ahmad Khattak

The Immigration Rules are construed sensibly according to the natural and ordinary meaning of their words, read against the relevant background and the Rules as a whole. The Secretary of State’s policy and guidance cannot replace that meaning. In the parent route, the requirement that an applicant must not be eligible to apply as a partner uses the general definition in GEN.1.2. That definition requires at least two years’ cohabitation unless another meaning applies. A qualification expressly attached to one condition cannot be carried into another. Financial differences, possible future disadvantage and speculative abuse did not justify a different construction.

The respondent, a Pakistani citizen, previously held leave under the five-year parent route based on his British daughter. By June 2019 he was living with a British partner of less than two years and had two British citizen children. The Secretary of State granted 30 months’ leave on exceptional-circumstances grounds under the ten-year partner route, without granting leave under the parent route.

The Upper Tribunal (Immigration and Asylum Chamber), by a decision dated 23 February 2021 in JR/16/2020, granted judicial review and quashed the decisions of 1 October and 20 November 2019 insofar as they refused the five-year parent route. The issue on appeal was whether E-LTRPT.2.3(b)(iii) used GEN.1.2’s definition of partner or instead treated any current partner relationship as sufficient for eligibility to apply.

1. Disposition. The appeal was dismissed. The Secretary of State’s decisions rested on an erroneous construction of Appendix FM, and the Upper Tribunal was right to quash them insofar as they refused leave under the five-year parent route.
2. Interpretive approach. The Immigration Rules are not construed with the strictness applicable to legislation. They are construed sensibly according to the natural and ordinary meaning of the words, against the relevant background, the Rules as a whole and the function they serve in administering immigration policy. The Secretary of State’s intention is discerned objectively from the language used, rather than from supposed policy considerations or departmental guidance. That approach, stated in Mahad v Entry Clearance Officer [2010] 1 WLR 48 and consistent with both stages of Odelola v Secretary of State for the Home Department [2009] 1 WLR 1230; [2009] 1 WLR 126, was applied.
3. Meaning of partner and eligibility. In E-LTRPT.2.3(b)(iii), eligibility to apply for leave as a partner required satisfaction of the relevant partner-route requirements, including the threshold definition in GEN.1.2. That definition required at least two years’ cohabitation in a relationship akin to marriage or civil partnership. The qualification in sub-paragraph (b)(ii), which expressly addressed relationships of less than two years, could not be carried into sub-paragraph (b)(iii). Reading eligibility as covering any person in a partner relationship would deprive the word eligible of meaning.
4. Consequential arguments. Any mismatch between the financial requirements for the parent and partner routes was a consequence of the Rules’ drafting and did not justify departing from their ordinary meaning. The less stringent parent-route requirements could reflect the importance of maintaining parental relationships and serving the child’s interests. A possible future disadvantage on an application for indefinite leave to remain could not determine the meaning of the present provision. Nor could speculative abuse through concealment of relationships justify a different construction.
5. Lord Justice William Davis gave the judgment. Lady Justice Carr and Lady Justice Macur agreed.

• Court of Appeal (Civil Division): dismissed the Secretary of State’s appeal and upheld the Upper Tribunal’s construction of Appendix FM.
• Upper Tribunal (Immigration and Asylum Chamber): on 23 February 2021, granted judicial review and quashed the Secretary of State’s decisions of 1 October and 20 November 2019 insofar as they refused leave under the five-year parent route.