UI2022004084

             Permission to appeal was granted to the Secretary of State by Upper Tribunal Judge Pickup on 12 th October 2022 on the basis that it was arguable that the First-tier judge had erred in law in misapplying the Withdrawal Agreement and finding that the appellant came within retained EU law when her residence had not be facilitated under the 2016 Regulations prior to the specified date.

             Upper Tribunal Judge Sheridan sent out directions on 3 rd November 2023 inviting the parties to consider if the appeal should conclude by way of a consent order on the basis that the claimant might conclude that she could not succeed in her appeal in light of the decision of the Court of Appeal in Celik v SSHD [2023] EWCA Civ 921 . No consent order signed by the claimant has been received by the Upper Tribunal.

             The matter came before me to determine whether the First-tier Tribunal had erred in law, and if so to decide if any such error was material and whether the decision should be set aside.

             The claimant did not submit a Rule 24 notice. The claimant's solicitors did however send an email dated 1 st May 2024 explaining that the claimant left the UK and has re-entered with a spouse visa, and that they would not be attending the hearing. In the event the appellant herself attended the hearing and confirmed that she now had leave to enter as a spouse until February 2026.

             The First-tier Tribunal concludes that the appellant could not meet the requirements of Appendix EU Annex 1 to fulfil the definition of a durable partner at paragraph 28 of the decision due to not holding a relevant document, and thus that the appeal cannot succeed in her appeal by reference to the Immigration Rules. This is clearly correct.