Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

Case Nos: UI-2022-002744
UI-2022-002745
UI-2022-002746

First-tier Tribunal Nos: EA/02891/2021
EA/14662/2021
EA/14725/2021

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 28 March 2023

Before

UPPER TRIBUNAL JUDGE KEBEDE

Between

GHULAM MURTAZA
BABAR IDRESS
MUNAZA BABAR
(no anonymity order made)
Appellants
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mr N Ahmed, instructed by Wright Justice Solicitors
For the Respondent: Mr F Gazge, Senior Home Office Presenting Officer

Heard at Birmingham Civil Justice Centre on 7 March 2023

DECISION AND REASONS
1. The appellants are citizens of Pakistan. The first and third appellants, born on 1 November 1988 and 20 August 1983 respectively, are the brother and sister of the sponsor, and the second appellant, born on 14 July 1987, is the husband of the third appellant and the brother-in-law of the sponsor. They appeal, with permission, against the decision of the First-tier Tribunal dismissing their appeals against the respondent’s decision to refuse to issue them with an EU Settlement Scheme (EUSS) Family Permit under Appendix EU (Family Permit) to the Immigration Rules.
2. The appellants each applied for an EUSS Family Permit on 30 December 2020 as the family members of an EEA national, Aamir Nazir, a Portuguese national living in the UK since 2016. Their applications were refused on 30 January 2021 (the first and third appellants) and 13 October 2021 (the second appellant), on the grounds that the respondent was not satisfied that their relationship to the sponsor fell within the definition of ‘family member of a relevant EEA citizen’ as stated in Appendix EU (Family Permit) of the Immigration Rules.
3. The appellants appealed against the respondent’s decision, claiming that they were extended family members of the EEA national sponsor, under regulation 8 of the EEA Regulations 2016.
4. The appeals came before First-tier Tribunal French on 12 April 2022. There was some preliminary discussion as to the dates when the applications were made, as the refusal decisions referred to dates in January 2021 whereas the appellants stated that they had made their applications on 30 December 2020. It was accepted on behalf of the respondent at the hearing that the applications had been made on 30 December 2020. It was argued before the judge on behalf of the appellants that they had never intended to make an application under the EUSS but had intended to make applications under the EEA Regulations 2016 and that they should be treated as having made such applications during the grace period allowed for under regulations 3(5) of the Withdrawal Agreement. Reliance was placed upon the covering letter of 15 January 2021 from the appellants’ solicitors accompanying the applications in that regard. On behalf of the respondent, however, it was argued that the applications had been made under the EUSS and not under regulation 8 of the EEA Regulations 2016 and that the appellants were now out of time to make applications under the EEA Regulations and could not succeed under the EUSS. It was noted that the sponsor’s parents had made an application at the same time as the appellants under the EUSS and had been successful because they met the relevant criteria as parents of the sponsor. It was also noted that the first appellant had made four previous unsuccessful applications under the EEA Regulations 2016. It was argued by the respondent that even if the applications were to be treated as having been made under the EEA Regulations 2016, the appellants could not succeed as they had failed to show that they were dependent upon the sponsor.
5. Judge French found that the letter of 15 January 2021 and the refusal decision both made it clear that the applications had been made under the EUSS and not under the EEA Regulations, and that the appellants did not meet the criteria for entitlement under the EUSS. He found that even if it was accepted that the applications had been made under the EEA Regulations, the appellants could still not succeed since the documentation provided was inadequate to show that they were dependants of the sponsor. The judge accordingly dismissed the appeals.
6. The appellants sought permission to appeal to the Upper Tribunal against Judge French’s decision on the grounds: that the judge had misdirected himself in law and that the applications had been made as extended family members of an EEA national under regulation 8 the EEA Regulations 2016 prior to the end of the transitional period and that they were covered by Articles 10(2) and (3) of the EU Withdrawal Agreement; and that the judge had failed to take into consideration material evidence and had failed to make proper findings on the issue of dependency.
7. Permission was granted in the First-tier Tribunal and the matter then came before me.

Hearing and Submissions
8. Mr Ahmed submitted that there was other supporting evidence before the First-tier Tribunal which made it clear that the appellants’ applications had been made under the EEA Regulations and he referred to the sponsorship declaration from the sponsor and the letter of 15 January 2021 from the appellants’ solicitors in that regard. He relied upon the unreported decision in ECO v Ahmed and ors (UI2022-002804-002809) and the recent decision in Siddiqa (other family members: EU exit) [2023] UKUT 00047, as well as a further unreported decision of the Upper Tribunal in Hussein (UI-2022-003123). He submitted that the judge had erred by not taking that into account. Further, by focussing on the EUSS issue, the judge had failed to undertake a proper assessment of the issue of dependency upon the sponsor. The decision should therefore be set aside.
9. Mr Gazge submitted that the judge had not erred in law as the applications had been made under the EUSS. The judge considered the evidence relied upon by the appellants but did not agree that the applications had been made other than under the EUSS. The judge’s decision was consistent with the decisions in Siddiqa and Batool & Ors (other family members: EU exit) [2022] UKUT 219 and the respondent was not required to treat one application as a different kind of application. The judge had considered the issue of dependency under the EEA Regulations in any event, to cover all bases.
10. Mr Ahmed reiterated the points previously made by way of a reply.
Discussion
11. As I pointed out to Mr Ahmed, I did not see how the decision in Siddiqa, upon which he relied, assisted the appellants in any way. The circumstances for these appellants are the same as those in the case of Siddiqa. In that case the Upper Tribunal distinguished the appellant’s circumstances from those in the unreported decision in Ahmed at [45] and [46] on the basis that in the latter, “the Upper Tribunal found that the clarity with which the appellants in Ahmed had indicated in the covering letter that they were making an application under the 2016 Regulations should have been seen by the ECO as "correcting" the fact that they had erroneously selected the EUSS option on the drop-down menu.” whereas in the former “the covering letter did not specifically refer to the 2016 Regulations or give any other express indication that this was the nature of the application being made. It referred to a "European Family Permit Visa" which, objectively viewed, was at least consistent with an application for an EU Settlement Scheme Family Permit, the drop-down box for which had been selected (even if it could also be said to be consistent with an EEA family permit under the 2016 Regulations). In those circumstances, it was not unreasonable for the ECO to treat it as such, and not to review the contents of the application and consider whether it had been correctly advanced.”
12. It was Mr Ahmed’s submission that the sponsorship declaration and the solicitor’s covering letter, both dated 15 January 2021, provided the relevant evidence confirming that the applications were being made under the EEA Regulations 2016. However that is clearly not the case. Those documents do not go anywhere near providing the clarity referred to in Ahmed. The reference in the sponsorship declaration to the EEA Regulations 2016 was in regard to the sponsor’s own status, not the applications made by the appellants, and the solicitor’s letter specifically refers to the applications being made under the EU Settlement Scheme. Judge French considered both documents and considered the same argument made by Mr Ahmed before him, rejecting it for the reasons properly given at [16]. He was fully and properly entitled to conclude that the applications had been made under the EUSS and had been correctly refused on the basis that they could not succeed under the EUSS.
13. As for the unreported decision in Hussein to which Mr Ahmed referred, that again involved very different circumstances, where the distinguishing feature was that the appellant’s online application under the EUSS had been shortly followed by an email clarifying that he had “inadvertently” selected the category of “Family member under the EU Settlement Scheme” when he had intended to make an application under the Immigration (EEA) Regulations 2016 as an extended family member. The Upper Tribunal, in fact, set aside the decision of the First-tier Tribunal which allowed the appeal for the reasons pleaded by the appellants in this case, although in that case it was accepted that the email provided evidence of an application having been made under the EEA Regulations 2016. As Judge French said at [16], there had been no attempt by the appellants in this case to seek to correct their applications.
14. In so far as Mr Ahmed’s skeleton argument seeks to rely on Articles 18(1)(o) and 18(1)(r) of the Withdrawal Agreement, not only were they not matters pleaded before Judge French and therefore not relevant to the question of whether he erred in law, but they cannot succeed in any event for the reasons provided in Siddiqa at [84].
15. As for Mr Ahmed’s second ground of appeal, that is parasitic upon the success of the first ground which I have found to be without merit. In any event it seems to me that Judge French’s findings at [17] on the question of the appellants’ dependency upon the sponsor, in the event that the applications were accepted as having been made under the EEA Regulations 2016, were adequate and were based upon a full assessment of all the evidence. The findings at [17] have to be seen in the light of the evidence recorded at [10] and the submissions recorded at [12], together with the judge’s confirmation at [14] of having considered all the documents referred to in that paragraph.
16. In the circumstances, there is no basis for the challenge made by the appellants. The grounds of appeal have no merit and do not identify any errors of law in Judge French’s decision. The judge gave full consideration to all the evidence before him and provided clear and cogent reasons for reaching the conclusions that he did. I uphold his decision.

Notice of Decision
17. The making of the decision of the First-tier Tribunal did not involve an error on a point of law requiring it to be set aside. The decision to dismiss the appeals stands.
Anonymity Order
Judge French made an anonymity order but without any reasons being given. I see no reason for that order to be maintained and I therefore discharge it pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

Signed: S Kebede
Upper Tribunal Judge Kebede

Judge of the Upper Tribunal
Immigration and Asylum Chamber

7 March 2023