Waleed Ahmad Khattak, R (on the application of) v The Secretary of State for the Home Department

For the purposes of Appendix FM, an applicant is “eligible to apply for leave to remain as a partner” only where the application and available information show, at least prima facie, that the applicant meets the autonomous definition of “partner” in GEN.1.2.

A different meaning applies only where the relevant route clearly provides for one. The phrase refers to eligibility to apply, rather than satisfaction of every substantive requirement for a grant. Policy guidance and supposed policy consequences cannot replace the natural and ordinary meaning of the Immigration Rules.

The applicant, a Pakistani national, had previously been granted leave under the five-year parent route. After entering a new relationship, he applied for further leave as a parent. The Secretary of State treated him as ineligible for the parent route because he had a partner, although the relationship had lasted less than two years and therefore did not satisfy GEN.1.2. Leave was granted on the ten-year partner route following consideration of exceptional circumstances under GEN.3.2.

The judicial review challenge concerned the meaning of “eligible to apply for leave to remain as a partner” in E-LTRPT.2.3 of Appendix FM.

1. The claim was granted. The phrase “eligible to apply for leave to remain as a partner” in E-LTRPT.2.3 refers to a threshold eligibility to apply, not to meeting all substantive requirements for a grant of leave.
2. Under [2009] UKSC 16, the Immigration Rules must be construed sensibly according to the natural and ordinary meaning of their words, considered against the Rules as a whole. The Secretary of State’s intention must be discerned objectively from the language used, not from supposed policy considerations or departmental guidance.
3. The starting point for “partner” is the autonomous definition in GEN.1.2. That definition includes a person who has lived with the applicant in a relationship akin to marriage or civil partnership for at least two years, unless the relevant route clearly provides a different meaning.
4. E-LTRPT.2.3(b)(ii) expressly states that “partner” includes a person in a relationship of less than two years. E-LTRPT.2.3(a) and (b)(iii) contain no equivalent qualification. The structure and wording therefore support applying GEN.1.2 to those provisions.
5. GEN.3.2, which permits leave following an Article 8 assessment where exceptional circumstances exist, concerns the possibility of a grant of leave and does not define eligibility to apply under the parent route. It did not support the Secretary of State’s wider construction.
6. The Family Policy guidance could not assist interpretation and was not consistent with the natural meaning of Appendix FM. The applicant was eligible to apply as a partner only if it was readily apparent from the application and available information that the autonomous definition was met, unless the route clearly prescribed another meaning.

The judgment records that permission for judicial review was granted on the papers by Upper Tribunal Judge Norton-Taylor on 8 February 2020. The Upper Tribunal granted the judicial review claim.