New reported decision on fairness of hearings and durable partners who subsequently marry

As was established by the Upper Tribunal in the case of Elais (fairness and extended family members) [2022] UKUT 00300, the following legal points were adopted by court:

On the court hearings fairness issue:

1. In order to conduct a fair hearing, cross-examination should be facilitated by the judge without undue interruption.

2. Where a transcript or recording is available of a hearing at which it is alleged that the proceedings were unfair, it is less likely to be appropriate to seek an account from the judge as to what took place.

On the extended family member issue under the European immigration rules:

3. Where:

a. an application for a residence card as the durable partner of an EEA national under the Immigration (European Economic Area) Regulations 2016 was made or refused before the end of the “implementation period” on 31 December 2020 at 11.00PM, and

b. the putative durable partners marry after the end of the implementation period,

in any appeal against the refusal of the application, the post-implementation period marriage is not capable of amounting to a “new matter/application” for the purposes of an appeal under the 2016 Regulations and is, at its highest, simply further evidence as to existence and durability of the claimed relationship between the appellant and the EEA sponsor.

4. Where such an appellant relies on a post-implementation period marriage to demonstrate the durability of the relationship upon which an application for a residence card as a durable partner was based, whether that marriage is genuine and subsisting may be a relevant issue for the tribunal to determine.

Posted on Feb 10, 2023.

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