UI2022002368

            This is an appeal by the Secretary of State. For ease of reference, I refer to the parties as they were before the First-tier Tribunal. The Respondent appeals against the decision of First-tier Tribunal Judge Feeney promulgated on 14 February 2022 ("the Decision") allowing the Appellant's appeal against the Respondent's decision dated 5 August 2021 refusing him status under the EU Settlement Scheme ("EUSS") as the spouse of an EEA national.

            The Respondent refused the Appellant's application on the basis that his marriage was not contracted until after 31 December 2020. Accordingly, the Appellant was not a family member prior to the date of the UK's departure from the EU and could not benefit as such under either the rules relating to EUSS (Appendix EU) or the withdrawal agreement between the UK and the EU on the UK's departure from the EU ("the Withdrawal Agreement").

            It was accepted that the Appellant could not establish his case as a family member. It was however argued on his behalf that he was a durable partner prior to 31 December 2020 and could succeed on that basis. Judge Feeney accepted that argument and determined the Appellant's appeal in his favour on that basis.

            The Respondent appealed the Decision on the basis that the Judge had failed to have regard to Appendix EU. Had she done so, she would have appreciated that, in order to succeed under Appendix EU (or the Withdrawal Agreement) as a durable partner, the Appellant's residence would have to be facilitated by the Respondent prior to 31 December 2020. There had been no such facilitation.

            Permission to appeal was granted by First-tier Tribunal Judge Dempster on 25 April 2022 in the following terms: