In the recent deportation case of Buci (Part 5A: “partner”: Albania)  UKUT 87 (IAC)('Buci') the Upper Tribunal (Lane J (President) + Mandalia (Upper Tribunal Judge)) has: (i) defined the meaning of “partner” for the purposes of the exception contained at sections 117C(5)/117D(1) of the Nationality, Immigration and Asylum Act 2002; and (ii) clarified that, even if the relationship relied upon is not with a 'partner', it will still be necessary to consider the effect of deportation on the other person.
Definition and Consideration of Effect
After considering the definition of 'partner' in GEN 1.2 of Appendix FM (Family members), the Upper Tribunal stated, at paragraph 19:
'The starting position, we find, is that anyone who satisfies the definition of "partner" in GEN.1.2. should, as a general matter, be regarded as being a "partner" for the purposes of Part 5A. Where a person does not fall within this definition, the judge will need to undertake a broad evaluative assessment of the relationship, having regard to the factors...'
As to 'the factors', the Upper Tribunal said, at paragraph 18:
‘The expression "partner" means a person to whom one has a genuine emotional commitment, 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, however strong the friendship may be. Nor is an adolescent's or other young person's boyfriend or girlfriend necessarily a "partner". The position may, however, change if the relationship becomes sufficiently serious and committed.'
Even where the other person to the relationship is not within the definition of 'partner', the decision maker must go on to consider the effect of deportation upon that person. The Upper Tribunal summary provides that, at (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  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).’
The definition statement in Buci of 'partner' is no doubt a welcome addition to the law. But also, Buci now clarifies that decision makers cannot ignore the relationship only because this does not meet the definition of ‘partner’ under sections 117C(5)/117D; they have to make a rounded assessment in order to consider whether the effect of deportation would be so serious as to amount to a disproportionate interference with Article 8 under s 117C(6).
The full judgment can be read here.
ISHRAT MAHMUD © 2020
33 BEDFORD ROW
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Ishrat Mahmud a member of our Immigration & Nationality and Civil Law teams.
Ishrat is dual-qualified as both a barrister in England and Wales and an advocate of the Supreme Court of Bangladesh. She accepts work in both jurisdictions. She provides expert advice on the enforcement of British orders in overseas jurisdictions and how mirror orders may be obtained, as well as providing expert evidence on the law in Bangladesh.
Ishrat offers advice and advocacy across the full spectrum of immigration works and attend hearings, from the First-Tier Tribunals to the Court of Appeal. She prepares grounds for judicial review, attends permission hearings, injunctions including out of hours hearings. Ishrat can be instructed on Part 7 and interim support applications under the Housing Act, small claims personal injury cases and possession hearings.