Fatjon Mustaj v Secretary of State for the Home Department

Immigration Rules are construed objectively according to their natural and ordinary meaning, read as a whole. Under the original paragraph (b)(ii)(bb)(aaa) in Appendix EU, a person may fall within the first limb if resident unlawfully or on another basis, rather than as a durable partner. The qualification beginning with unless nevertheless excludes a person who lacked a relevant document and had no other lawful basis of stay. Such a person cannot qualify as a durable partner. The revised wording contains a drafting error and must be read to the same effect. Two years’ cohabitation is not essential where other significant evidence establishes a durable relationship. Later events may be relevant evidence, but are not determinative.

The appellant, an Albanian national, entered the United Kingdom unlawfully in 2017 and began a relationship with a Romanian national who held pre-settled status under the EUSS. They began living together in November 2020, married on 3 April 2021, and he applied under Appendix EU four days later. The application was refused.

The First-tier Tribunal and the Upper Tribunal upheld the Secretary of State’s position that the appellant was not a durable partner at the end of the transition period. The principal issue before the Court of Appeal was the meaning of paragraph (b)(ii)(bb)(aaa). The appellant also challenged the factual finding that the relationship was not durable, relying on evidence after the specified date.

The appeal was dismissed unanimously. Falk LJ delivered the principal judgment, with Bean LJ and Underhill LJ agreeing.

1. Construction of the Rules. The Immigration Rules must be construed sensibly according to their natural and ordinary meaning, read as a whole and in light of their administrative function. The Secretary of State’s intention is discerned objectively from the language used, rather than supposed policy considerations or departmental guidance. This approach followed Mahad v Entry Clearance Officer [2009] UKSC 16, which adopted the approach in Odelola v Secretary of State for the Home Department [2009] UKHL 25.
2. Original paragraph (aaa). The first limb imposed a qualitative requirement concerning the capacity in which the person was resident. A person in a durable relationship could fall within it despite being resident unlawfully or on another lawful basis. The qualification beginning with unless then excluded a person who lacked a relevant document and had no other lawful basis of stay. The appellant therefore fell outside the definition of durable partner, and consequently could not benefit from paragraph EU14 or EU14A. The Court agreed with Hani [2024] UKUT 68 (IAC) on this construction.
3. Revised paragraph (aaa). The later wording was not relevant to construing the earlier version, since the earlier provision was not ambiguous in the relevant sense. However, the revised wording inadvertently introduced a drafting error. Applying the principle in Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586, and having regard to the Explanatory Memorandum, it had to be read as having the same effect as the original: paragraph (aaa) was confined to persons with another lawful basis of stay.
4. Durable relationship. Although unnecessary to the disposal of the appeal, the Court observed that two years’ cohabitation in a relationship akin to marriage or civil partnership was only one alternative means of evidencing durability. Other significant evidence could suffice. Under regulation 9(4) of the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020, evidence arising after the specified date could also be considered. Its weight was fact-sensitive; a later marriage might be relevant but was not determinative. The Court referred to Elais v Secretary of State for the Home Department [2022] UKUT 00300 (IAC).
5. Drafting observations. The Court endorsed concerns about the convoluted and inaccessible drafting of Appendix EU, including its rule-of-law consequences, the risk of mistaken decisions, and avoidable litigation.

• Court of Appeal (Civil Division): The appeal from the Upper Tribunal was dismissed unanimously on 23 May 2025.
• Upper Tribunal (Immigration and Asylum Chamber): Deputy Upper Tribunal Judge Monson upheld the refusal under case UI-2022-003508 and agreed that the appellant did not meet the durable partner definition.
• First-tier Tribunal: Judge Bart-Stewart reached the same conclusion, including that the relationship was not durable at the specified date.