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Upper Tribunal gives up trying to understand immigration law
This is quite the doozy. The Home Secretary appealed the decision of a First-tier Tribunal looking at the durable partner rules under the EU Settlement Scheme. The FtT Judge had found in favour of the appellant but HO appealed on the grounds that they did not possess a “relevant document
Two UT Judges heard the appeal and amongst the gems in their decision:
13. 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.
18. 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.
20. 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.
21. 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!’.
23. In the absence of detailed submissions, the Upper Tribunal would usually attempt a sensible interpretation of the rule from the plain wording. For the reasons given above, it is not possible to discern the meaning or application of paragraph (b)(ii)(bb)(aaa) with any confidence. Given the incoherence of this aspect of the rules, it cannot be said that the judge’s attempted interpretation was irrational. The Secretary of State has failed to show how or why her finding amounted to an error of law.
(a) the person is, or (as the case may be) for the relevant period was, in a durable relationship with a relevant EEA citizen (or, as the case may be, with a qualifying British citizen or with a relevant sponsor), with the couple having lived together in a relationship akin to a marriage or civil partnership for at least two years (unless there is other significant evidence of the durable relationship); and
(b) ...
>(ii) where the person is applying as the durable partner of a relevant sponsor (or, as the case may be, of a qualifying British citizen), or as the spouse or civil partner of a relevant sponsor (as described in sub-paragraph (a)(i)(bb) of the entry for ‘joining family member of a relevant sponsor’ in this table), and does not hold a document of the type to which sub-paragraph (b)(i) above applies, and where:
>>(aa) the date of application is after the specified date; and
>>(bb) the person:
>>>(aaa) was not resident in the UK and Islands as the durable partner of a relevant EEA citizen (where that relevant EEA citizen is their relevant sponsor) on a basis which met the definition of ‘family member of a relevant EEA citizen’ in this table, or, as the case may be, as the durable partner of the qualifying British citizen, at (in either case) any time before the specified date, unless the reason why, in the former case, they were not so resident is that they did not hold a relevant document as the durable partner of a relevant EEA citizen for that period (where their relevant sponsor is that relevant EEA citizen) and they did not otherwise have a lawful basis of stay in the UK and Islands for that period;
The terms “relevant sponsor”, “relevant EEA citizen” “qualifying British citizen” and “relevant document” all have their own definitions with multiple nested layers, all handily left-justified without indentation.
If they cannot understand something as simple and straightforward as that, what are we paying them for?