Fatjon Mustaj v Secretary of State for the Home Department [2025] EWCA Civ 663

[2025] EWCA Civ 663Case No CA-2024-002105
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
DEPUTY UPPER TRIBUNAL JUDGE MONSON
UI-2022-003508
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 23/05/2025
Before
LORD JUSTICE UNDERHILL(Vice-President of the Court of Appeal (Civil Division))LORD JUSTICE BEANLADY JUSTICE FALK
Between
FATJON MUSTAJAppellantSECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
Tom Wilding (instructed by A J Jones Solicitors) for AppellantNatasha Jackson (instructed by the Treasury Solicitor) for RespondentHearing Hearing date: 8 May 2025
Approved JudgmentThis judgment was handed down remotely at 10.00am on Friday 23 May 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................

Introduction

[1]This appeal concerns the interpretation of one paragraph in the EU Settlement Scheme (the “EUSS”), contained in Appendix EU to the Immigration Rules. In outline, the EUSS enabled EU (and EEA and Swiss) citizens who were resident in the UK before the end of the EU exit transition period, and certain of their family members, to obtain immigration status on a basis that was in line with, and in some respects more generous than, the Withdrawal Agreement.[2]The Appellant, Mr Fatjon Mustaj, is an Albanian national who entered the UK illegally in 2017 and remained here without leave. He commenced a relationship with a Romanian national, Ms Andrea Maria Todea, in November 2019. On 1 May 2020 Ms Todea was granted limited leave to remain, known as pre-settled status, under the EUSS. The couple commenced cohabiting in November 2020 and got engaged. They married on 3 April 2021. Four days later, on 7 April 2021, Mr Mustaj applied for limited leave to remain under the EUSS. His application was refused on 23 April 2021.[3]It is uncontroversial that, because the marriage did not take place before the end of the transition period (11pm on 31 December 2020), Mr Mustaj must show that he was the “durable partner” of Ms Todea at that time, as defined in Appendix EU. The Secretary of State’s position is that he did not meet that definition at that time. The First-tier Tribunal (“FTT”) (Judge Bart-Stewart) and the Upper Tribunal (“UT”) (Deputy Upper Tribunal Judge Monson (the “judge”)) agreed with the Secretary of State. Mr Mustaj appealed to this court with the UT’s permission.[4]The primary issue on this appeal is the correct interpretation of paragraph (b)(ii)(bb)(aaa) of the definition of durable partner, set out in Annex 1 to Appendix EU. Paragraph (aaa) was not considered by the FTT in its decision but it was considered by the UT, where the judge agreed with the Secretary of State’s construction.[5]The Secretary of State’s position is that the effect of paragraph (aaa) is that Mr Mustaj could not qualify as a durable partner because he had no lawful basis to stay in the UK. Resolution of that issue in the Secretary of State’s favour would determine the appeal against Mr Mustaj. This is the subject of ground 2 of the appeal to us.[6]However, if the Secretary of State is wrong about paragraph (aaa) then her fallback argument is that, on the facts, the couple did not have a durable partnership as at 31 December 2020 in any event, reflecting the FTT’s finding to that effect. This is the subject of ground 1 of the appeal. In summary, Mr Mustaj argues that the FTT wrongly failed to consider the evidence in the round, including relevant evidence postdating 31 December 2020. Mr Mustaj would need to prevail on both ground 1 and ground 2 in order to succeed in his appeal.[7]In granting permission to appeal to this court, Upper Tribunal Judge Bruce noted that the UT’s decision on the meaning of paragraph (aaa) was consistent with Hani (EUSS durable partners: para (aaa)) [2024] UKUT 68 (IAC) (“Hani”). The decision in Hani was not available to the parties at the UT hearing, so there had been no argument about it, but it was referred to by the judge in his decision. Judge Bruce also noted that there were a number of outstanding cases that would turn on whether the approach in Hani was correct.[8]The version of paragraph (aaa) which is the subject of this appeal is the version that was in force between the end of the transition period (at which point Appendix EU was largely replaced and paragraph (aaa) was introduced for the first time) until the replacement of paragraph (aaa) with a revised version on 12 April 2023. For clarity, I will refer to the version of paragraph (aaa) that is the subject of this appeal as “paragraph (aaa)” and the version which replaced it in April 2023 as “revised paragraph (aaa)”.

Legislative background

[9]The legislative background to the EUSS is considered in some detail in the judgment of Lewis LJ in Celik v Secretary of State for the Home Department [2023] EWCA Civ 921, [2024] 1 WLR 1946 (“Celik”) at [7] to [38]. I will not repeat it in detail. Most relevantly for present purposes, Lewis LJ explained the obligation of member states under Article 3(2) of Directive 2004/38/EC to “facilitate” the entry and residence of so-called extended family members of an EU citizen, including a person in a durable relationship with them (Celik at [12] and [13]). The Directive was implemented by the Immigration (European Economic Area) Regulations 2016 (SI 2016/1052) (the “EEA Regulations”). The EEA Regulations conferred a discretion to issue a family permit permitting an extended family member to join an EU national in the UK, and to issue a residence card ([14] to [17]).[10]Article 10 of the Withdrawal Agreement made provision for extended family members whose UK residence had either been “facilitated” before the end of the transition period, or pursuant to an application made before that time, to fall within the scope of the Agreement (Celik at [26]). Article 18 permitted the UK and member states to provide for a new residence status conferring rights guaranteed by the Agreement, evidenced by a document ([28] and [29]). The EUSS, adopted in March 2019, was the UK’s scheme envisaged by Article 18 ([30]). From that point up to the end of the transition period, an EU national or family member might apply either under the EEA Regulations or under the EUSS, but thereafter only under the EUSS ([36] and [37]).[11]As Lewis LJ explained at [38], a right of appeal against (among other things) a refusal of an application under Appendix EU to grant leave to enter or remain in the United Kingdom was granted by regulation 3 of the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 (SI 2020/61) (see regulation 3(1)(c), read with s.17(1)(a) of the European Union (Withdrawal Agreement) Act 2020). Under regulation 8, permissible grounds of appeal include that the decision under regulation 3(1)(c) is “not in accordance with” Appendix EU (regulation 8(3)(b)). This is the provision on which Mr Mustaj relies. Relevantly to ground 1 of the appeal, regulation 9(4) expressly empowers the tribunal to “consider any matter which it thinks relevant to the substance of the decision appealed against, including a matter arising after the date of the decision”.

Appendix EU

[12]I should say at the outset that the description in Hani at [21] of the drafting of paragraph (aaa) as “complex” is a polite understatement. My overall impression of Appendix EU is of a highly convoluted drafting approach that makes understanding it a real challenge for the most experienced lawyer, let alone for lay users.[13]In particular, most of Appendix EU is taken up with definitions. These occupy some 60 pages. Within that, not all of the definitions are set out in alphabetical order and many are very lengthy. As will be seen from what follows, there is a liberal use of paragraphs, sub-paragraphs, sub-sub-paragraphs and even sub-sub-sub-paragraphs, with roman numbers and letters to match. The text is even more difficult to understand if (as is the case with the current version that appears on the gov.uk website) the version used does not reflect the formatting, in particular the spacing and indentations, that appears in the original document produced by the Home Office and that is later reflected in archived versions, because those features are important to understanding what text qualifies what other text. Further, although defined terms are sometimes indicated by the use of bold text, we were told that this is only where the definition is first used, which is of no help to someone looking at a particular provision rather than attempting to read the entire document. In addition, the sheer length of the definitions section makes the absence of a hyperlink from each use of a defined term to the actual definition awkward.[14]These are all points of style and accessibility, albeit important ones. However, they would be less important if the quality of the drafting did not leave as much to be desired as it does. When it comes to paragraph (aaa), I have to say that I do not find it surprising that this led the UT to observe in Secretary of State for the Home Department v Kabir, UI-2022-002538, that the paragraph was “simply unclear”, and shortly thereafter to describe it in Alijaj, UI-2022-003601, as “close to being impenetrable” (see the judge’s decision in this case at [32] and [37]). It may well be that it was Kabir or Alijaj that prompted the Secretary of State to revise paragraph (aaa) with effect from April 2023, although as discussed below that has created its own difficulty. Like Bean LJ, I would wish to associate myself with the Vice-President’s broader observations about the problems caused by poor drafting of the Immigration Rules and the hope that they will be addressed.[15]Turning to the substance, and as in force at the relevant time, the most relevant provision of Appendix EU for someone applying for limited leave to remain was paragraph EU14, which was in the following terms:
“The applicant meets the eligibility requirements for limited leave to enter or remain where the Secretary of State is satisfied, including (where applicable) by the required evidence of family relationship, that, at the date of application and in an application made by the required date, condition 1 or 2 set out in the following table is met: Condition 1: (a) The applicant is: (i) a relevant EEA citizen; or (ii) a family member of a relevant EEA citizen…” (For present purposes the “required date” was before 1 July 2021. The concept of “required evidence of family relationship” is separately defined, but it was not submitted that anything ultimately turns on that.) (i) a relevant EEA citizen; or (ii) a family member of a relevant EEA citizen…”
[16]In Annex 1, “family member of a relevant EEA citizen” was relevantly defined as: “a person who does not meet the definition of ‘joining family member of a relevant sponsor’ in this table, and who has satisfied the Secretary of State, including by the required evidence of family relationship, that they are (and for the relevant period have been), or (as the case may be) for the relevant period (or at the relevant time) they were:(a) the spouse or civil partner of a relevant EEA citizen, and: (i) the marriage was contracted or the civil partnership was formed before the specified date; or (ii) the applicant was the durable partner of the relevant EEA citizen before the specified date (the definition of ‘durable partner’ in this table being met before that date rather than at the date of application), and the partnership remained durable at the specified date; or(b) the durable partner of a relevant EEA citizen, and: (i) the partnership was formed and was durable before the specified date; and (ii) the partnership remains durable at the date of application (or it did so for the relevant period or immediately before the death of the relevant EEA citizen); or … in addition… the family relationship continues to exist at the date of application”. (i) the marriage was contracted or the civil partnership was formed before the specified date; or (ii) the applicant was the durable partner of the relevant EEA citizen before the specified date (the definition of ‘durable partner’ in this table being met before that date rather than at the date of application), and the partnership remained durable at the specified date; or (i) the partnership was formed and was durable before the specified date; and (ii) the partnership remains durable at the date of application (or it did so for the relevant period or immediately before the death of the relevant EEA citizen); or …[17]Ms Todea fell within the definition of “relevant EEA citizen”, as a Romanian national with the benefit of pre-settled status under the EUSS. Mr Mustaj was therefore the spouse of a relevant EEA citizen at the date of his application, and so potentially within paragraph (a). However, he was not married to Ms Todea before the relevant “specified date”, which was the end of the transition period, 11pm on 31 December 2020, within paragraph (a)(i). The relevant provision is therefore paragraph (a)(ii), which requires that Mr Mustaj was the “durable partner” of Ms Todea before and at the specified date.[18]One apparent complication is the requirement in the first part of the definition of “family member of a relevant EEA citizen” that Mr Mustaj was not a “joining family member of a relevant sponsor”. This cross-reference introduces further, detailed, definitions on which we did not receive detailed submissions. This was the subject of some debate at the hearing. My understanding of that debate is that there is no issue between the parties about it, because both agree that ground 2 of the appeal turns entirely on the construction of paragraph (aaa). However, the debate is of some relevance to understanding the definition of durable partner and, in particular, the Secretary of State’s interpretation of paragraph (aaa), so I will make some brief observations about it.[19]In outline, paragraph EU14A contains an equivalent provision to paragraph EU14 for a “joining family member of a relevant sponsor”. The definition of “joining family member of a relevant sponsor” also includes a provision that corresponds to paragraph (a) of the definition of “family member of a relevant EEA citizen”, set out at [16] above. So it would similarly require Mr Mustaj to show that he was the “durable partner” of Ms Todea before and at the specified date. However, the concepts of “joining” and “relevant sponsor” both suggest that what paragraph EWU14A is aimed at is persons applying from outside the UK to join their EEA citizen partner (their sponsor) in the UK, and this appears to be reinforced by additional conditions included in the (lengthy) definition of “joining family member of a relevant sponsor”.[20]Ms Jackson, for the Secretary of State, confirmed that paragraph EU14A is indeed principally aimed at such a situation. However, in the Secretary of State’s view it is not so confined. In particular, the first of the additional conditions just referred to is that the person was: “not resident in the UK and Islands on a basis which met the definition of ‘family member of a relevant EEA citizen’ in this table (where that relevant EEA citizen is their relevant sponsor) at any time before the specified date”. (Emphasis supplied.)[21]Ms Jackson’s point was that this is not limited to persons who are outside the UK, but instead can extend to a person resident in the UK but whose own residence is on a different basis from being a family member of a relevant EEA citizen, for example because they are resident in the UK under a student or work visa.[22]Returning to the substance of the dispute, the definition of durable partner was as follows: “(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)(i) the person holds a relevant document as the durable partner of the relevant EEA citizen (or, as the case may be, of the qualifying British citizen or of the relevant sponsor) for the period of residence relied upon; for the purposes of this provision, where the person applies for a relevant document (as described in sub-paragraph (a)(i)(aa) or (a)(ii) of that entry in this table) as the durable partner of the relevant EEA citizen or, as the case may be, of the qualifying British citizen before the specified date and their relevant document is issued on that basis after the specified date, they are deemed to have held the relevant document since immediately before the specified date; or (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; or (bbb) was resident in the UK and Islands before the specified date, and one of the events referred to in sub-paragraph (b)(i) or (b)(ii) in the definition of ‘continuous qualifying period’ in this table has occurred and after that event occurred they were not resident in the UK and Islands again before the specified date; or (ccc) was resident in the UK and Islands before the specified date, and the event referred to in sub-paragraph (a) in the definition of ‘supervening event’ in this table has occurred and after that event occurred they were not resident in the UK and Islands again before the specified date, the Secretary of State is satisfied by evidence provided by the person that the partnership was formed and was durable before (in the case of a family member of a qualifying British citizen as described in sub-paragraph (a)(i)(bb) or (a)(iii) of that entry in this table) the date and time of withdrawal and otherwise before the specified date; and (c) it is, or (as the case may be) for the relevant period was, not a durable partnership of convenience; and (d) neither party has, or (as the case may be) for the relevant period had, another durable partner, a spouse or a civil partner with (in any of those circumstances) immigration status in the UK or the Islands based on that person’s relationship with that party…” (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; or (bbb) was resident in the UK and Islands before the specified date, and one of the events referred to in sub-paragraph (b)(i) or (b)(ii) in the definition of ‘continuous qualifying period’ in this table has occurred and after that event occurred they were not resident in the UK and Islands again before the specified date; or (ccc) was resident in the UK and Islands before the specified date, and the event referred to in sub-paragraph (a) in the definition of ‘supervening event’ in this table has occurred and after that event occurred they were not resident in the UK and Islands again before the specified date,[23]In outline, therefore, there must have been a “durable relationship” with the relevant EEA citizen, a concept which is not itself defined but which requires two years of cohabitation or other “significant evidence” (paragraph (a)), the relationship must not be one of convenience (“durable partnership of convenience” is separately defined) (paragraph (c)), and there must be no other partner with immigration status (paragraph (d)).[24]The problematic provision is the additional requirement in paragraph (b), which contains two alternatives. Alternative (i) is that the person held a “relevant document” as a durable partner of the relevant EEA citizen. The definition of “relevant document” includes a residence card issued under the EEA Regulations. The effect of the definitions is that the document must have been either issued before (in this case) the specified date, or issued pursuant to an application made before that date.[25]Alternative (ii) applies where no such document is held, the Secretary of State is satisfied that the durable partnership existed before the specified date (see the closing words of paragraph (b)(ii)), and the conditions in paragraphs (aa) and (bb) are met.[26]At this point I need to digress a little again. I referred at [18] above to the potential relevance of the concept of “joining family member of a relevant sponsor”. This arises from the first part of paragraph (b)(ii) and relates most clearly to the use there of the concept of “relevant sponsor”, the definition of which refers only to such “joining” family members, with the effect that the scope of paragraph (b)(ii), and therefore of paragraph (aaa) itself, appears to be limited to individuals who are a “joining family member of a relevant sponsor”.[27]As already indicated, neither party relied on this point as assisting their case. In particular, Ms Jackson submitted that, on the Secretary of State’s interpretation, a person who had an alternative lawful basis of stay in the UK could benefit from paragraph (aaa) even if they were physically present here, because they could be treated as a “joining” family member within paragraph EU14A (see [21] above).[28]Returning again to the substance of the dispute, Mr Mustaj held no relevant document, so the alternative in paragraph (b)(ii) is potentially relevant. Further, Mr Mustaj made his application after the specified date (paragraph (aa)).The focus is therefore on paragraph (bb), and within that on paragraph (aaa) rather than (bbb) or (ccc), neither of which are relevant on the facts since Mr Mustaj was in the UK at all relevant times. (I should strictly refer to sub-paragraphs, sub-sub-paragraphs and sub-sub-sub-paragraphs, but I will avoid that since it would only increase the awkwardness of the cross-references.)

The rival interpretations of paragraph (aaa)

[29]The Secretary of State’s position, unlike the drafting of the rules, is relatively simple. It is that paragraph (aaa) contains a narrow exception to a strict requirement that a person must have a relevant document as a durable partner under the EEA Regulations in order to rely on being a durable partner resident in the UK before the end of the transition period. The exception, which goes beyond the requirements of the Withdrawal Agreement, applies to individuals who may have been able to apply successfully for such a document before the end of the transition period but had an alternative lawful basis of stay in the UK at that time, such as a student or work visa. Paragraphs (bbb) and (ccc) provide alternative routes for those without a valid document, but to be able to benefit from one of those the applicant would need to have broken the continuity of their UK residence for more than six months.[30]Mr Mustaj’s case is that, as well as being in a durable partnership with Ms Todea before the end of the transition period, he satisfied paragraph (aaa) because he did not have a residence card and was in the UK unlawfully. This is said to follow from thewording of paragraph (aaa).[31]In more detail, Mr Wilding, for Mr Mustaj, submitted as follows: a) Paragraph (b)(ii), in contrast to paragraph (b)(i), applies where the person in question does not have a document issued under the EEA Regulations (an “EEA document”). Its provisions need to be read in that context. b) Within paragraph (b)(ii), paragraph (aaa) establishes positive criteria, such that the definition is met if those criteria are satisfied. There are three component parts. c) The first is that the person was “not resident in the UK…as the durable partner of a relevant EEA citizen” (emphasis supplied). Mr Wilding submits that Mr Mustaj was such a durable partner and was resident in the UK, so that he did not satisfy this element of the test (because it is expressed in the negative). d) The second part is the words “unless the reason why…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”. Mr Mustaj did not have a residence card, so (provided he was in a durable relationship by 31 December 2020) the consequence must be that he positively met this element of the test. In other words, someone who did not hold a residence card but was in a durable relationship at that date met this positive criterion. e) The third part is the words “and they did not otherwise have a lawful basis of stay in the UK and Islands for that period”. This was plainly met. f) Therefore, although Mr Mustaj did not meet the first part of the test, he was brought within paragraph (aaa) by satisfying the second and third parts.[32]Mr Wilding submitted that the “architecture” of the rules is such that paragraph (aaa) applies if the only reason that the person in question was not resident as a durable partner is that they did not have the relevant document, and any alternative reading would involve redundancy. The upshot was that the requirements of the rules were met where the person 1) was in a durable relationship with a relevant EEA citizen before 31 December 2020; 2) did not hold an EEA document to that effect; and 3) had no other lawful basis of stay.

Interpretation of paragraph (aaa): discussion

[33]The starting point to the proper approach to the construction of the Immigration Rules was uncontroversial. In Mahad v Entry Clearance Officer [2009] UKSC 16, [2010] 1 WLR 48 (“Mahad”) at [10] Lord Brown cited the following passage from Lord Hoffmann’s speech in Odelola v Secretary of State for the Home Department [2009] UKHL 25, [2009] 1 WLR 1230 (referred to by Lord Brown as the MO (Nigeria) case)at [4]:
“Like any other question of construction, this [whether a rule change applies to all undetermined applications or only to subsequent applications] depends upon the language of the rule, construed against the relevant background. That involves a consideration of the immigration rules as a whole and the function which they serve in the administration of immigration policy.”
[34]Lord Brown went on to say this, in the same paragraph of Mahad:
“Essentially it comes to this. The Rules are not to be construed with all the strictness applicable to the construction of a statute or a statutory instrument but, instead, sensibly according to the natural and ordinary meaning of the words used, recognising that they are statements of the Secretary of State’s administrative policy. The ECO’s counsel readily accepted that what she meant in her written case by the proposition ‘the question of interpretation is … what the Secretary of State intended his policy to be’ was that the court’s task is to discover from the words used in the Rules what the Secretary of State must be taken to have intended. After all, under section 3(2) of the Immigration Act 1971, the Secretary of State has to lay the Rules before Parliament which then has the opportunity to disapprove them. True, as I observed in the MO (Nigeria) case, at para 33: ‘the question is what the Secretary of State intended. The rules are her rules.’ But that intention is to be discerned objectively from the language used, not divined by reference to supposed policy considerations. Still less is the Secretary of State’s intention to be discovered from the Immigration Directorates’ Instructions (‘IDIs’) issued intermittently to guide immigration officers in their application of the rules. IDIs are given pursuant to paragraph 1(3) of Schedule 2 to the 1971 Act which provides that: ‘In the exercise of their functions under this Act immigration officers shall act in accordance with such instructions (not inconsistent with the immigration rules) as may be given them by the Secretary of State …’ (Emphasis added.)”
[35]So in essence we must interpret the Immigration Rules “sensibly according to the natural and ordinary meaning of the words used”. They are statements of administrative policy, but the Secretary of State’s intentions must be discerned from the language used, rather than by reference to supposed policy considerations or guidance on the rules (then in the form of “IDIs” issued to officers).[36]However, even the stricter approach to construing statutes allows clear drafting errors in statutory language to be addressed. The position was authoritatively explained by Lord Nicholls in Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586 (“Inco Europe”), where he said this at p.592: “It has long been established that the role of the courts in construing legislation is not confined to resolving ambiguities in statutory language. The court must be able to correct obvious drafting errors. In suitable cases, in discharging its interpretative function the court will add words, or omit words or substitute words. Some notable instances are given in Professor Sir Rupert Cross’s admirable opuscule, Statutory Interpretation, 3rd ed. (1995), pp. 93–105. He comments, at p. 103: ‘In omitting or inserting words the judge is not really engaged in a hypothetical reconstruction of the intentions of the drafter or the legislature, but is simply making as much sense as he can of the text of the statutory provision read in its appropriate context and within the limits of the judicial role.’ This power is confined to plain cases of drafting mistakes. The courts are ever mindful that their constitutional role in this field is interpretative. They must abstain from any course which might have the appearance of judicial legislation. A statute is expressed in language approved and enacted by the legislature. So the courts exercise considerable caution before adding or omitting or substituting words. Before interpreting a statute in this way the court must be abundantly sure of three matters:(1) the intended purpose of the statute or provision in question;(2) that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and(3) the substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error in the Bill been noticed. The third of these conditions is of crucial importance. Otherwise any attempt to determine the meaning of the enactment would cross the boundary between construction and legislation: see per Lord Diplock in Jones v Wrotham Park Settled Estates [1980] AC 74, 105–106. In the present case these three conditions are fulfilled. Sometimes, even when these conditions are met, the court may find itself inhibited from interpreting the statutory provision in accordance with what it is satisfied was the underlying intention of Parliament. The alteration in language may be too far-reaching. In Western Bank Ltd. v Schindler [1977] Ch. 1, 18, Scarman LJ observed that the insertion must not be too big, or too much at variance with the language used by the legislature. Or the subject matter may call for a strict interpretation of the statutory language, as in penal legislation...” ‘In omitting or inserting words the judge is not really engaged in a hypothetical reconstruction of the intentions of the drafter or the legislature, but is simply making as much sense as he can of the text of the statutory provision read in its appropriate context and within the limits of the judicial role.’[37]Given that clear errors in statutory language can be addressed, the “sensible” approach to interpreting the Immigration Rules described in Mahad must allow for at least an equivalent latitude to correct errors. An example of this can be seen in this court’s approach in Hoque v Secretary of State for the Home Department [2020] EWCA Civ 1357, [2020] 4 WLR 154 (“Hoque”), where the majority accepted an argument that a sentence in paragraph 276B of the Immigration Rules had been inserted in the wrong place.[38]As to guidance, a limited qualification to Lord Brown’s observations in Mahad was observed by Jackson LJ in Pokhriyal v Secretary of State for the Home Department [2013] EWCA Civ 1568 (“Pokhriyal”) at [42], in that where a rule is ambiguous and published guidance adopts an interpretation which is more favourable to applicants, that may be relied upon. As Jackson LJ went on to make clear at [43], it does not work the other way round: the Secretary of State may not rely on guidance to resolve an ambiguity in her favour.[39]It follows from the above that the mere fact that Mr Mustaj’s preferred interpretation of paragraph (aaa) would produce a surprising result by reference to likely policy considerations would not be sufficient to displace that interpretation if it was otherwise sufficiently clear. However, in my view that interpretation does not withstand a careful scrutiny of the language used. Further, the correct approach to interpreting paragraph (aaa) does not involve resolving a drafting error, as in Hoque.[40]I should clarify at the outset that Ms Jackson, for the Secretary of State, placed some reliance in her written submissions on the interpretation relied on by Mr Mustaj being inconsistent with the outcome of Celik. This was also a point made by the judge at [42] of the UT’s decision in this case. However, the correct interpretation of paragraph (aaa) was simply not put in issue in Celik, so it cannot assist on that question.[41]The structure of paragraph (aaa) is in two parts, the first part being the text preceding the word “unless”, namely:
“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…at…any time before the specified date…”
[42]This refers to not being UK resident “as” the durable partner of a relevant EEA citizen “on a basis” that met the definition of “family member of a relevant EEA citizen”. As the UT observed in Hani at [25] this introduces a qualitative requirement. It asks whether any residence was “as” such a partner, in other words the capacity in which they were resident. The interpretation contended for by Mr Wilding glosses over the words used.[43]I also agree that the text covers a broad category of persons (Hani at [26] to [28]) In particular, anyone with a durable partnership with a relevant EEA citizen prior to the specified date (and who therefore met the closing words of paragraph (b)(ii), see [25] above) and who was UK resident either lawfully on some different basis (such as a student or work visa), or unlawfully, could fall within it. Pausing there, therefore, it could apply to Mr Mustaj because he had no lawful basis to be in the UK. In other words, and contrary to Mr Wilding’s submission, he fell within the first part of paragraph (aaa) because he was not resident “as” a durable partner, rather than falling outside it because he was so resident. (There is of course a circularity in the definition here, since paragraph (aaa) is part of the definition of durable partner. That is an unhelpful drafting infelicity but I do not consider that it materially assists Mr Mustaj.)[44]The second part of paragraph (aaa) is the text starting with “unless”, namely: “unless the reason why…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…and they did not otherwise have a lawful basis of stay in the UK and Islands for that period”.[45]The natural meaning of these words is that a person is taken out of paragraph (aaa) if they did not hold a relevant document (for present purposes, a residence card) and they had no other lawful basis of stay. In other words, even if they fall within the first part of paragraph (aaa), that will not assist them to meet the durable partner definition if they are also caught by the qualification that follows and which starts with the word “unless”. In addition, the word “unless” naturally qualifies both the absence of a document and the absence of another lawful basis of stay.[46]It could be argued that the first part of the qualification adds little of substance to the words that precede “unless”, because if no such document was held then the person might be said not to be resident “as” a durable partner. Rather, the critical point is the lack of another lawful basis of stay. Nonetheless, and importantly, the words “the reason why” and the reference to “so” resident in the first part of the qualification reinforce the point made at [42] above about the qualitative requirement in the first half of paragraph (aaa). It asks why the person was not so resident.[47]The interpretation contended for by Mr Wilding requires these words to be ignored. That interpretation depends on someone in Mr Mustaj’s position falling outside the first part of paragraph (aaa) but then being brought within paragraph (aaa) by the “unless” caveat that follows. But that just does not work as a matter of language unless the words “the reason why…they were not so resident” are ignored. The argument depends on Mr Mustaj being resident as a durable partner, not being “not so resident”.[48]It follows from this that the Secretary of State’s interpretation of paragraph (aaa) reflects the natural and ordinary meaning of the words used. That it is the correct interpretation is further supported by it being obviously more sensible than that contended for by Mr Wilding. As the UT correctly observed in Hani at [22], the alternative involves an absurdity. Mr Wilding had to accept that it would involve placing a person who had no lawful immigration status in a better position than a person who had a lawful basis of stay. It would mean that a person who was in a durable relationship with a relevant EEA citizen by 31 December 2020 and who had not sought a residence card because they had no need to, because (for example) they held a student or work visa, could not fall within the durable partner definition, whereas a person in such a relationship with no residence card and who was in the UK illegally could do so by virtue of paragraph (aaa).[49]In contrast, and as the UT observed in Hani at [37], the Secretary of State’s approach has the logic of not penalising those who failed to apply under the EEA Regulations before the end of the transition period for a document that they did not need, because they had another lawful basis of stay. It accords with both a sensible and purposive approach to the rules.[50]Mr Wilding also sought to rely on guidance issued by the Secretary of State, which he submitted did not say that the lack of a document was fatal where a durable relationship existed by the specified date. However, as Mahad makes clear the Immigration Rules must generally be construed on their own terms rather than by reference to guidance. Mr Wilding did not submit that the limited qualification to this explained in Pokhriyal (see [38] above) was relevant and, based on the guidance to which he referred, I cannot see that it could be. Insofar as that guidance indicates that holding a document under the EEA Regulations is not essential to being a durable partner, that is common ground.[51]I therefore agree with the conclusion in Hani at [36] that a person with no lawful basis of stay cannot satisfy paragraph (aaa).[52]Applied to Mr Mustaj’s situation, therefore, the effect of paragraph (aaa) is as follows: a) he was not UK resident “as” the durable partner of a relevant EEA citizen before the specified date, so he fell within the first part of paragraph (aaa); but b) the reason why he was not so resident is that he did not hold a residence card; and c) he did not have another lawful basis of stay; such that d) the qualification in the second part of paragraph (aaa) applied to remove him from its ambit.[53]The consequence is that Mr Mustaj falls outside paragraph (aaa) and therefore outside the definition of durable partner. It follows that he was not a “family member of a relevant EEA citizen” and so cannot benefit from paragraph EU14. Further, he cannot benefit from paragraph EU14A as a joining family member of a relevant sponsor, because that concept also depends on him falling within the definition of durable partner.

The revised paragraph (aaa)

[54]Mr Wilding placed reliance on the revised paragraph (aaa), which as already mentioned was introduced with effect from 12 April 2023. The revised paragraph (aaa) read (and still reads) as follows:
“(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 entry for ‘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 (in the former case): - the reason why they were not so resident is that they did not hold a relevant document as the durable partner of that relevant EEA citizen for that period; and - they otherwise had a lawful basis of stay in the UK and Islands for that period; or” - the reason why they were not so resident is that they did not hold a relevant document as the durable partner of that relevant EEA citizen for that period; and - they otherwise had a lawful basis of stay in the UK and Islands for that period; or”
[55]I was unpersuaded by Mr Wilding’s arguments that it is legitimate for any material regard to be paid to the revised paragraph (aaa) in construing its predecessor. No authorities were cited to support that proposition, and indeed Mr Wilding accepted in oral argument that it could not be legally relevant to the correct construction of the previous version. I have therefore not taken it into account for that purpose.[56]I note that Bennion, Bailey and Norbury on Statutory Interpretation, 8th ed. (“Bennion”) at 24.19 considers the potential for later legislation to provide persuasive authority in construing earlier legislation. However, it both explains that this will only apply where the earlier legislation is ambiguous in the sense of being equally open to different meanings and suggests that the possibility is in any event confined to later primary legislation.[57]We are not dealing with primary legislation, and I consider it wrong in principle to seek to deduce from a later change initiated by the Secretary of State what her intention is to be treated as being when paragraph (aaa) was first introduced. As made clear in Mahad, that intention must be discerned objectively from the language used, rather than from subjective evidence of any kind. In any event the previous version of paragraph (aaa) is not ambiguous in the sense referred to by Bennion.[58]Notwithstanding this, I consider it appropriate to include some observations about the effect of the revised paragraph (aaa). We heard argument about it from both parties and there is an obvious risk of further disputes arising in respect of periods following the introduction of the revised text.[59]In Hani, the UT considered that the revised paragraph (aaa) introduced a “degree of clarity” and did not make any substantive change ([39]). I regret that I am unable to agree with the first of those comments. As Mr Wilding rightly pointed out, the difference between the two versions is not limited to the inclusion of bullet points as Hani suggests, because the word “not” is omitted in the final part of the paragraph. Rather than “they did not otherwise have a lawful basis of stay…” the final part reads “they otherwise had a lawful basis of stay…”.[60]Mr Wilding submitted that this reversed the meaning, such that the revised paragraph (aaa), unlike the original, did have the effect contended for by the Secretary of State. The removal of the word “not” meant that the two versions could not mean the same thing.[61]On the face of it this is a powerful submission. Ms Jackson’s submission in response that the previous version included a double negative (“were not so resident… did not otherwise have a lawful basis of stay…”) which the revised layout addressed, such that the phrasing of the second bullet point could be expressed positively, was hard to follow and ultimately unpersuasive.[62]Rather, if the analysis set out above of the words used in the previous version is applied to the revised version, that would suggest that the meaning did indeed change, albeit to the opposite effect to that contended for by Mr Wilding. In brief, the first part of the paragraph is unchanged. It therefore covers a broad category of persons, including someone in Mr Mustaj’s position. The first part of the “unless” caveat is also essentially unchanged. However, the second part appears to take those with another lawful basis of stay outside paragraph (aaa), so that they cannot benefit from it.[63]The revised paragraph (aaa) was one of a number of amendments laid before Parliament on 9 March 2023. The accompanying Explanatory Memorandum listed it at paragraph 7.17 as one of five “main changes” to Appendix EU, explaining the change in the following terms:
“Durable partners – to underline the original policy intent under the EUSS that it is only where they had another lawful basis of stay in the UK before the end of the transition period that a durable partner who was not documented as such under the EEA Regulations can rely on that residence.”
[64]The Explanatory Memorandum therefore makes clear that what was intended to be achieved was clarification that a durable partner without documentation under the EEA Regulations needed to have another lawful basis of stay. Unlike the Secretary of State’s guidance, an Explanatory Memorandum presented to Parliament is clearly relevant to the interpretation of the revisions it proposes. (There is an analogy here with Explanatory Notes accompanying a Bill, which may be used at least “to understand the background to and context of the Act and the mischief at which it is aimed”: Bennion at 24.14.)[65]As already explained, the court can correct obvious drafting errors in legislation(Inco Europe), and the “sensible” approach to interpreting the Immigration Rules described in Mahad must allow for at least an equivalent latitude. I also note that, in Hoque, the majority took account of the relevant Explanatory Memorandum in concluding that a sentence in the Immigration Rules had been inserted in the wrong place.[66]I would conclude that, properly understood, the revised paragraph (aaa) inadvertently introduced a drafting error. In what the Explanatory Memorandum makes clear was an attempt to clarify that only those with a lawful basis of stay can benefit from paragraph (aaa), revised wording was introduced which on a close analysis suggests the opposite. Given that this would clearly be contrary to the intended effect, the proper approach is to correct the error such that paragraph (aaa), in both its original and revised form, is confined to those who had a lawful basis of stay.

The durable relationship requirement (ground 1)

[67]The conclusion that paragraph (aaa) does not apply to a person without a lawful basis of stay in the UK disposes of the appeal. It is therefore not necessary to address whether the FTT erred in concluding that Mr Mustaj was not in a durable relationship with Ms Todea by 31 December 2020 (ground 1 of the appeal), and, save for two observations, I will not do so.[68]The first observation is this. As already mentioned at [23] above, the term “durable relationship” that appears in paragraph (a) of the definition of durable partner is not itself defined. It must therefore be interpreted in accordance with its ordinary meaning. However, this is subject to the fact that paragraph (a) specifies two, alternative, minimum requirements for evidencing the existence of such a relationship. The first is that the couple have lived together for at least two years “in a relationship akin to a marriage or civil partnership”. The second is that “there is other significant evidence of the durable relationship”.[69]It is important to emphasise that, as the use of the word “unless” before the second alternative demonstrates (“unless there is other significant evidence of the durable relationship”), these are alternatives. Thus, the existence of two years of cohabitation is not an essential prerequisite to the existence of a durable relationship, provided there is other “significant evidence” that demonstrates it. To the extent that the FTT might have suggested otherwise at one point in its decision, that would have been an error.[70]The second observation relates to the probative value of events after 31 December 2020 in demonstrating that a durable relationship existed before and at that date. It was rightly common ground that the FTT may take into account such evidence (see regulation 9(4) of the 2020 regulations, referred to at [11] above). The precise weight to be given to it will obviously depend on the facts, and will primarily be a matter for the fact-finding tribunal. But, for example, a marriage that occurred shortly after 31 December 2020 is unlikely to be irrelevant to the existence of a durable relationship by that date, particularly if it is consistent with other evidence of a significant level of commitment before that date. As the UT observed in Elais vSecretary of State for the Home Department [2022] UKUT 00300 (IAC), such matters are “part of the evidential landscape”, which may provide evidence of the prior durability of the relationship but will not be determinative (see at [49], [52] and [54]).

Conclusion

[71]In conclusion, I would dismiss the appeal. A person in the position of Mr Mustaj, who had no lawful basis of stay in the UK, cannot fall within paragraph (b)(ii)(bb)(aaa) in the definition of durable partner in Annex 1 to Appendix EU.[72]I agree that for the reasons given by Falk LJ in her clear and comprehensive judgment the appeal should be dismissed. I also agree with the observations of the Vice-President about the drafting of the Immigration Rules. I respectfully endorse his call for the Secretary of State to implement the recommendations of the Law Commission, made over five years ago, for the simplification of the Rules. The substance of immigration law is often highly contentious: but surely there can be no rational disagreement with the need for the Rules to be readily intelligible.[73]I agree that Falk LJ’s careful analysis of the language and structure of paragraph (b)(ii)(bb)(aaa) in its original form shows that it does not have the (very surprising) effect for which the Appellant contends; and also that the revised version must be read, despite its literal language, as having the same effect as the original language. I only wish to add something on the problems caused by the way in which Appendix EU is drafted.[74]At para. 12 of her judgment Falk LJ describes the drafting of Appendix EU as “highly convoluted” and as presenting a real challenge even to experienced lawyers. She summarises the principal problems in paras. 13-14. I fully endorse what she says. The present case is a good illustration of those problems: although in the end the correct meaning of paragraph (aaa) (strictly “sub-sub-sub-paragraph (aaa)”) does become clear, Falk LJ’s judgment shows the complications involved in getting to that point. As she says, the problem with Appendix EU is partly to do with style and accessibility (particularly where the online version of the rules does not reproduce the lineation and lay-out which are essential to understanding their structure); but it is just as much with poor drafting of the actual language. It is remarkable that the changes introduced in order to “clarify” the meaning of paragraph (aaa) should in fact have had the opposite effect and had to be corrected by recourse to the Inco principle.[75]This is not the first time this Court has encountered these problems with Appendix EU: see, for example, Secretary of State for the Home Department v Rexhaj [2024] EWCA Civ 784, [2025] 1 WLR 63. That case illustrates the related problem that too often Home Office Presenting Officers, or officials instructing counsel, themselves have no clear understanding of the Rules. Although that was not a problem as regards the core issue in the present case, there were some peripheral aspects on which we were unable to obtain clear assistance. And the Secretary of State will be aware of what happened in Kabir, to which Falk LJ refers at para. 14, where the UT dismissed an appeal from her on the basis that paragraph (aaa) was impossible to understand without the benefit of an explanation which the presenting officer had been unable to give.[76]I know that the Secretary of State is aware of these problems. Following repeated judicial criticisms of the drafting of the Immigration Rules, in December 2017 the Home Office agreed with the Law Commission a project addressing the issue; and the Commission has since produced, in January 2019, a clear and constructive Consultation Paper followed, in January 2020, by its final report Simplification of the Immigration Rules (Law Comm no. 388). It is unfortunate that neither was available at the time that Appendix EU was first promulgated, in July 2018. In Hoque, to which Falk LJ has already referred, a Court comprising myself and McCombe and Dingemans LJJ referred to the continuing problems: see paras. 59, 96 and 105 of our judgments.[77]It is nevertheless important that the Courts should continue to draw attention to the problems caused by the standard of drafting in the Rules generally, and Appendix EU in particular. It is a fundamental aspect of the rule of law that individuals, or at least those advising them, should be able to understand the rules which govern their access to important rights. Equally seriously, poor drafting leads to mistaken decisions, which not only can cause injustice in individual cases but involve the waste of time, cost and other resources in avoidable litigation. I very much hope that the Secretary of State will not only proceed with the implementation of the Law Commission’s recommendations, which focus on questions of style and accessibility, but also consider what steps can be taken to ensure that the standard of drafting within the Home Office becomes more professional. It is fair to acknowledge that mistakes will sometimes occur in any complex piece of drafting; but experience suggests that mistakes much more frequently occur in the drafting of the Immigration Rules (and associated guidance) than in other forms of legislation.

Cited in 2 later judgments