The Court of Appeal has today (23rd May 2025) handed judgment down in the case Mustaj v Secretary of State for the Home Department [2025] EWCA Civ 663 in which the Court set out the correct interpretation of (aaa) found in the definitions section of Appendix EU is that a durable partner without an EEA document must otherwise have been lawfully in the UK, by extension upholding the Upper Tribunal’s decision in Hani v Secretary of State for the Home Department Hani (EUSS durable partners: para. (aaa)) [2024] UKUT 68.
Whilst finding against the appellant’s interpretation on the meaning of the pre-April 2023 version of the immigration rules, the Court found that the amendment to the definition of durable partner did not, on the language used, say what the Secretary of State had intended, and corrected the meaning as one of a drafting error:
62. Rather, if the analysis set out above of the words used in the previous version is applied to the revised version, that would suggest that the meaning did indeed change, albeit to the opposite effect to that contended for by Mr Wilding. In brief, the first part of the paragraph is unchanged. It therefore covers a broad category of persons, including someone in Mr Mustaj’s position. The first part of the “unless” caveat is also essentially unchanged. However, the second part appears to take those with another lawful basis of stay outside paragraph (aaa), so that they cannot benefit from it.
63. The revised paragraph (aaa) was one of a number of amendments laid before Parliament on 9 March 2023. The accompanying Explanatory Memorandum listed it at paragraph 7.17 as one of five “main changes” to Appendix EU, explaining the change in the following terms:
“Durable partners – to underline the original policy intent under the EUSS that it is only where they had another lawful basis of stay in the UK before the end of the transition period that a durable partner who was not documented as such under the EEA Regulations can rely on that residence.”
64. The Explanatory Memorandum therefore makes clear that what was intended to be achieved was clarification that a durable partner without documentation under the EEA Regulations needed to have another lawful basis of stay. Unlike the Secretary of State’s guidance, an Explanatory Memorandum presented to Parliament is clearly relevant to the interpretation of the revisions it proposes. (There is an analogy here with Explanatory Notes accompanying a Bill, which may be used at least “to understand the background to and context of the Act and the mischief at which it is aimed”: Bennion at 24.14.)
65. As already explained, the court can correct obvious drafting errors in legislation (Inco Europe), and the “sensible” approach to interpreting the Immigration Rules described in Mahad must allow for at least an equivalent latitude. I also note that, in Hoque, the majority took account of the relevant Explanatory Memorandum in concluding that a sentence in the Immigration Rules had been inserted in the wrong place.
66. I would conclude that, properly understood, the revised paragraph (aaa) inadvertently introduced a drafting error. In what the Explanatory Memorandum makes clear was an attempt to clarify that only those with a lawful basis of stay can benefit from paragraph (aaa), revised wording was introduced which on a close analysis suggests the opposite. Given that this would clearly be contrary to the intended effect, the proper approach is to correct the error such that paragraph (aaa), in both its original and revised form, is confined to those who had a lawful basis of stay.
The Court also again made observations as to the state of the drafting of Appendix EU, and the difficulties that lay people and professional lawyers have with the way in which the rules are drafted, structured and set out on the gov.uk website:
74. At para. 12 of her judgment Falk LJ describes the drafting of Appendix EU as “highly convoluted” and as presenting a real challenge even to experienced lawyers. She summarises the principal problems in paras. 13-14. I fully endorse what she says. The present case is a good illustration of those problems: although in the end the correct meaning of paragraph (aaa) (strictly “sub-sub-sub-paragraph (aaa)”) does become clear, Falk LJ’s judgment shows the complications involved in getting to that point. As she says, the problem with Appendix EU is partly to do with style and accessibility (particularly where the online version of the rules does not reproduce the lineation and lay-out which are essential to understanding their structure); but it is just as much with poor drafting of the actual language. It is remarkable that the changes introduced in order to “clarify” the meaning of paragraph (aaa) should in fact have had the opposite effect and had to be corrected by recourse to the Inco principle.
77. It is nevertheless important that the Courts should continue to draw attention to the problems caused by the standard of drafting in the Rules generally, and Appendix EU in particular. It is a fundamental aspect of the rule of law that individuals, or at least those advising them, should be able to understand the rules which govern their access to important rights. Equally seriously, poor drafting leads to mistaken decisions, which not only can cause injustice in individual cases but involve the waste of time, cost and other resources in avoidable litigation. I very much hope that the Secretary of State will not only proceed with the implementation of the Law Commission’s recommendations, which focus on questions of style and accessibility, but also consider what steps can be taken to ensure that the standard of drafting within the Home Office becomes more professional. It is fair to acknowledge that mistakes will sometimes occur in any complex piece of drafting; but experience suggests that mistakes much more frequently occur in the drafting of the Immigration Rules (and associated guidance) than in other forms of legislation.
Mr Mustaj was represented by Tom Wilding of 36 Public & Human Rights, instructed by Alyssia Jones of AJ Jones Solicitors.
The judgment can be viewed here.
Further information
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Involving Tom Wilding
