UI2022002022

            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 Freer promulgated on 16 March 2022 ("the Decision") allowing the Appellant's appeal against the Respondent's decision dated 8 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 Immigration 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").

            The Respondent appealed the Decision on the basis that the Judge had failed to have regard to Appendix EU. Had he done so, he 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 initially refused by First-tier Tribunal Judge Hatton on 11 May 2022 in the following terms:

The grounds assert the Judge erred in allowing the appeal. First, because the Judge misapplied the applicable Regulations and the Withdrawal Agreement ("WA"). Second, because the Judge provided inadequate reasoning on the issue of proportionality.