Sherif Hani v Secretary of State for the Home Department

A person in a durable relationship who lacked both a relevant document and another lawful basis of stay at the specified date cannot meet the definition of durable partner in Annex 1 to Appendix EU of the Immigration Rules. The unless clause in paragraph (b)(ii)(bb)(aaa) is an exception which excludes, rather than assists, such a person.

The later drafting amendment made by HC 1160 did not alter that substantive position. Residence on immigration bail is not a lawful basis of stay for this purpose. Immigration bail regulates release from, or liability to, immigration detention; it does not confer a right of residence or convert unlawful presence into lawful stay.

The appellant, an Albanian national, applied under the EU Settlement Scheme for pre-settled status as the durable partner of a Romanian citizen. His relationship was accepted to be genuine, subsisting and durable, but he had no relevant document recognising residence as a durable partner before the specified date.

The First-tier Tribunal allowed the appeal. Upper Tribunal Judge Rimington later allowed the Secretary of State’s appeal, set aside that decision and directed a rehearing in the Upper Tribunal. The appellant contended that his immigration bail gave him a lawful basis of stay, bringing him within paragraph (b)(ii)(bb)(aaa) of the durable-partner definition in Annex 1 to Appendix EU.

1. Appeal dismissed. The First-tier Tribunal’s decision involved an error of law and was set aside. The Upper Tribunal remade the decision by dismissing the appellant’s appeal.

2. Paragraph (b)(ii)(bb)(aaa) of the definition of durable partner in Annex 1 to Appendix EU of the Immigration Rules contains broad first-half criteria, qualified by an unless exception. The exception applies where the reason the applicant was not resident as a recognised durable partner was both the absence of a relevant document and the absence of any other lawful basis of stay. Where both conditions are present, the first-half route falls away.

3. That construction avoids treating unlawful residence as a positive means of regularising status through the EU Settlement Scheme. It also gives effect to the purpose of the route: a person who had a separate lawful basis of stay should not be penalised for failing to obtain a durable-partner document which was unnecessary at the time.

4. The amendment made by HC 1160 on 12 April 2023 clarified the presentation of the provision through bullet points but did not alter its substantive eligibility criteria.

5. Immigration bail under Schedule 10 to the Immigration Act 2016 is not a lawful basis of stay. It is available in connection with immigration detention powers and regulates release or non-detention restrictions. It does not grant residence rights or change the legal quality of a person’s presence in the United Kingdom. The appellant therefore lacked both a relevant document and another lawful basis of stay at 11.00 pm on 31 December 2020.

• Upper Tribunal (Immigration and Asylum Chamber): Upper Tribunal Judge Rimington allowed the Secretary of State’s appeal, set aside the First-tier Tribunal’s decision, and directed a rehearing in the Upper Tribunal under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007. No citation was stated.
• First-tier Tribunal: Judge R. Sullivan allowed the appellant’s appeal under the Immigration (Citizens' Rights Appeals) (EU Exit) Regulations 2020. That decision was set aside.