The Upper Tribunal provides interpretation of the word “partner” in Part 5A of the 2002 Act

The Upper Tribunal provides interpretation of the word “partner” in Part 5A of the 2002 Act


CategoryNews Author Zane Malik Date

The Upper Tribunal’s Presidential Panel gives its judgment in Buci (Part 5A: “partner”) [2020] UKUT 87 (IAC). The key issue before the Upper Tribunal was about the interpretation of the word “partner” in Part 5A of the Nationality, Immigration and Asylum Act 2002.

The Upper Tribunal held:

(1) The word “partner” is not defined in Part 5A of the Nationality, Immigration and Asylum Act 2002.  The definition of “partner” in GEN 1.2 of Appendix FM to the Immigration Rules does not govern the way in which “partner” is to be interpreted in Part 5A.

(2) A person who satisfies the definition in GEN 1.2 should, as a general matter, be regarded as being a partner for the purposes of Part 5A, Where, however, a person does not fall within that definition, the judge will need to undertake a broad evaluative assessment of the relationship, bearing in mind that a “partner” is a person to whom one has a genuine emotional attachment, of the same basic kind as one sees between spouses and civil partners, albeit not necessarily characterised by present cohabitation. A “partner” is not the same as a friend; nor is an adolescent’s or other young person’s boyfriend or girlfriend necessarily a “partner”.

(3) The fact that, in the absence of a statutory definition, judges may reach different conclusions as to whether an individual has been shown to be another person’s partner is unlikely to pose significant difficulties, since the fundamental question in section 117C(5) is the effect of deportation on the partner. A relationship which is categorised as that of partners, where the parties have only recently met and are not cohabiting is, in general, far less likely to generate unduly harsh consequences for the remaining partner, if the foreign criminal is deported, compared with where a relationship is longstanding and there has been significant co-habitation.

(4) Where, conversely, a relationship is not categorised as that of partners, it will still be necessary to consider the effect of deportation on the other person, by reference to section 117C(6).  In the light of NA (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 662, it is the substance of the relationship that needs to be examined and, in this type of case, it will be productive of error to draw too bright a line between section 117C(5) and (6).

Zane Malik appeared for the Appellant.

The Upper Tribunal’s judgment is here.

 


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