Paragraph (b)(ii)(bb)(aaa) of Annex 1 of Appendix EU leaves judges stumped
With credit to Goldsmith Chambers' Lawrence Youssefian for spotting and highlighting via Twitter, a notable recent unreported decision sees the Upper Tribunal (Immigration and Asylum Chamber) trying but failing to fathom the definition of 'durable partner' in Appendix EU of the Immigration Rules.
The decision is EA/13870/2021, an appeal by the Secretary of State. EIN members can read the decision here. The decision on the Tribunal's website is available here. It concerns an application for leave to remain under the EU Settlement Scheme which was originally refused. A subsequent appeal against the Secretary of State's refusal was allowed by the First-tier Tribunal in March 2022. The Upper Tribunal was hearing the Secretary of State's appeal against that decision.
Upper Tribunal Judge Canavan notes: "At the crux of this appeal is the meaning of the definition of a 'durable partner' (other family member) contained in 'Annex 1 - Definitions - Durable Partner' for the purpose of defining a 'family member' of a relevant EEA citizen under the 'Eligibility' requirement contained in paragraph EU14 of Appendix EU of the immigration rules."
In particular, the appeal is concerned with the meaning of paragraph (b)(ii)(bb)(aaa) of Annex 1 of Appendix EU.
In the original First-tier Tribunal decision from March 2022, the judge remarked that the provision was "convoluted" and "not clearly drafted". In the Upper Tribunal appeal, Judge Canavan and Deputy Judge Mailer wholeheartedly agree.
The wording of the paragraph in question, and of Appendix EU more broadly, leaves the Upper Tribunal judges unimpressed: "For many years there have been calls for the immigration rules to be simplified and made more accessible. Parts of the EU Settlement Scheme contained in Appendix EU are the antithesis of this ambition, and if anything, manage to increase the complexity and construct even higher barriers to comprehension. […] In short, some parts of the rules relating to the EU Settlement Scheme are so difficult to comprehend that it is at least arguable that they lack the clarity of law."
Judge Canavan says there is nothing in the wording of the paragraph (b)(ii)(bb)(aaa) that might reveal its intended meaning.
Canavan stated: "The Upper Tribunal has spent a long time seeking to trace the origin and development of this part of the scheme before writing this decision. This has involved looking at past iterations of Appendix EU, the original Statement of Intent for the scheme, and the respondent's guidance for caseworkers. Although we could attempt a more detailed analysis citing all the different definitions that one might need to turn to within the wording of paragraph (b)(ii) and Appendix EU, we conclude that it is not a proportionate use of court time. Having spent many hours considering this part of the rules one finds that there is nothing natural or plain about the wording that might reveal its intended meaning. A repeated reading of paragraph (aaa), the associated definitions within the Appendix, and the policy guidance only leads to a 'curiouser and curiouser' situation. Like Alice in Wonderland one falls down a rabbit hole and stumbles across a circular race, with the Eaglet exclaiming: 'Speak English!... I don't know the meaning of half of those long words, and what's more, I don't believe you do either!'."
The Secretary of State's representative was unable to help the judges come to an understanding of what it might mean.
The decision notes: "This is an appeal brought by the Secretary of State, yet her representative was not in a position to shed light on the meaning of the provision with reference to which the appeal was allowed. […] When asked to explain the meaning and effect of paragraph (b)(ii)(bb)(aaa) he simply repeated that Appendix EU required the appellant to hold a relevant document as a durable partner. […] [T]here may be good reason why the Secretary of State's representatives might struggle to assist. However, it is reasonable for the Upper Tribunal to expect the Secretary of State, as represented in court, to be able to explain the meaning and effect of her own rules."
More broadly on the EU Settlement Scheme, Judge Canavan remarks: "Given that the scheme was designed to regularise the status of millions of European citizens and their family members who were resident in the United Kingdom before it exited from the European Union, the provisions needed to be sufficiently clear for a lay person to apply for leave to enter or remain without the assistance of a legal representative. Instead, some parts are barely comprehensible even to experienced legal professionals, including the Secretary of State's own representatives, who through no fault of their own often seem unable to explain the meaning of the provisions to the Tribunal with any confidence."
The Secretary of State's appeal was not successful. The Upper Tribunal found that as it was not possible to discern the meaning or application of paragraph (b)(ii)(bb)(aaa) with any confidence, it could not be said that the First-tier Tribunal judge's attempted interpretation was irrational and thus amounted to an error of law.
The decision attracted plenty of attention on social media. George Peretz KC said the case shows how "ridiculously obscure and complex" the Immigration Rules have become. He added: "No-one - including the Home Office - understands them. As the Upper Tribunal suggests, they have lost the clarity of law: a real rule of law issue."