Personal Immigration

Upper Tribunal clarifies unmarried partner rule for partners of refugees

In Fetle (Partners: two year requirement) [2014] UKUT 00267 (IAC), the Upper Tribunal has held that in contrast to the requirement of paragraph GEN 1.2(iv) of Appendix FM, a requirement (such as in paragraph 352AA of the Immigration Rules) that "parties have been living together in a relationship akin to either a marriage or a civil partnership which has subsisted for two years or more" does not require two years cohabitation, but two years subsistence of the relationship.

The Appellant was a national of Eritrea who had originally applied for entry clearance to enable her to settle in the United Kingdom as the wife of a refugee. Following the refusal of her initial application, the appellant appealed. On appeal, the appellant accepted that she could not meet the requirements of the Rules under which she had applied, because her claimed marriage to the sponsor had not been registered and she could not therefore be regarded as his wife. However, she claimed instead that she could meet the requirements of paragraph 352AA of the Immigration Rules, HC 395 (as amended), as a partner of the sponsor.

Paragraph 352AA of the Immigration Rules sets out "the requirements to be met by a person seeking leave to enter or remain in the United Kingdom as the unmarried or the same-sex partner of a refugee". The requirements include the following:

"(ii) the parties have been living together in a relationship akin to either a marriage or a civil partnership which has subsisted for two years or more; and

Interpreting this sub-paragraph, the Upper Tribunal held that paragraph 352AA(ii) imposes a different requirement to the requirement for unmarried partners of settled persons contained in paragraph GEN 1.2(iv) of Appendix FM:

"9 …. The insertion of the words "which has subsisted" before the specification of the period seems to us crucially to separate the specified period from the requirement to have "lived together". The "subsistence" of the relationship is an additional requirement in this subparagraph and later in the Rules, so it does not need to appear in this part of the rule save for the purpose of clarifying what it is that has to have happened for the specified period. There may, we remind ourselves, be a number of reasons why a couple, whether married or unmarried, do not in fact live together: the demands of employment maybe such a reason; so may a need to flee the country. Such factors do not necessarily destroy a relationship, which may continue to subsist despite the separation. A relationship said to be akin to marriage, but in which the cohabitation has been minimal, may not be able to be established as "subsisting", so there is no danger of our interpretation leading to a view that (for example) one night's cohabitation would be enough to claim entitlement under the Rules."

Although the appeal was ultimately dismissed on the basis that the evidence did not support a finding that the relationship was separately "subsisting" at the date of decision, the Upper Tribunal did find that that the First-tier Tribunal judge was wrong in finding that the appellant could not meet the requirements of paragraph 352AA solely because the appellant and the sponsor had lived together for less than two years.

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