Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/05785/2019
EA/05786/2019
EA/05787/2019

THE IMMIGRATION ACTS

Heard at Bradford
Decision & Reasons Promulgated
On the 12 January 2022
On the 20 June 2022

Before

UPPER TRIBUNAL JUDGE HANSON

Between

RASHIDA MOBEEN
HAMMAD AHMED
SAMAVIA SATTAR
(Anonymity direction not made)
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms G Patel instructed by Affirm Legal Solicitors.
For the Respondent: Mr McVeety, a Senior Home Office Presenting Officer.

ERROR OF LAW FINDING AND REASONS
Background
1. The appellants, citizens of Pakistan born on the 2 October 1977, 29 November 2000 and 10 December 2016 respectively, appeal with permission the dismissal of their appeals against a decision of an Entry Clearance Officer (ECO) who refused their applications for an EEA Family Permits as extended family members of an EEA national exercising treaty rights in the United Kingdom.
2. The first appellant is the mother of the second and third appellants. The sponsor is a Spanish national who was born in Pakistan but who obtained Spanish citizenship in 2011.
3. The Judge records that the appellants constitute half their family unit as they also live with the first appellant’s husband, who is also the father of the second and third appellants, and three further children who applied to join the sponsor in the UK in February 2020 in a separate application.
4. Having considered the documentary and oral evidence the Judge sets out findings of fact from [11] of the decision under challenge. It is clear that the Judge considered all the evidence with the required degree of anxious scrutiny and as a result noted what are described as significant shortcomings in the evidence [14] and that the Judge was unable to accept the appellant’s account of why they became dependent upon the sponsor due to the weakness of the evidence on this issue, as set out in the decision.
5. At [17 -18] the Judge writes:
17. On the evidence before me, I do not accept the Appellants’ account of why they became dependent upon S due to the weakness of the evidence on this issue as set out above. I also do not accept that the Appellants have provided full disclosure of their financial circumstances in Pakistan. It follows that while I accept that S is providing financial support to the Appellants, the Appellants have not established that they require this support to meet their essential living needs. I thus find the Appellants have not established that they are dependent upon S. It follows that the Appellants have not established that they are extended family members of S as set out at Reg 8 of the EEA Regulations. I therefore dismiss the appeal under the EEA regulations.
18. I add one further matter. I raised with Ms Patel at the outset Reg 8(8). I raise this as the Appellants formed part of an entirely separate family unit of 7 to S, and S had not lived in the same country as the Appellants for over 20 years, S having left Bangladesh at a very early age. Ms Patel stated she was able to deal with this issue in submissions and did not request any further time. Two issues arise. First, as noted the Appellants are half a family. A3 is 4 years old. While her father also has either an application pending, the grant of a Family Permit to the Appellants could lead to the separation of A3 from her father at least until his application was resolved. This would not be in the child’s best interests. Second, and more importantly, Ms Patel accepted that S would not be deterred from exercising free movement rights if the application was refused. He moved to the UK long before he began providing the Appellants with money. The outcome of this appeal is irrelevant to whether S remains in the UK or decides to exercise his free movement rights in some other way. His evidence that he would not go back to Spain or move to Pakistan in the event of a refusal. In the circumstances, and on the basis of the second issue alone, I do not consider it would be appropriate to issue an EEA Family Permit even if the Appellants were dependent upon S.
6. The Appellant sought permission to appeal which was granted by another judge of the First-tier Tribunal, the operative part of the grant being in the following terms:
2. The Judge erred in considering the reason why the appellants became dependent on the sponsor in determining the issue of dependency. As per the Court of Appeal in Lim v ECO Manila [2015] EWCA Civ 1383, the reasons for becoming dependent and not relevant to the issue of dependency.
3. Further, it is arguable, as set out in the grounds, that the Judge erred when making his findings at the appellants had not established that they required support from the sponsor to meet their essential living needs. This finding is arguably based on speculation, on the basis that the Judge found that the appellants had not provided full disclosure of their financial circumstances in Pakistan. The Judge concluded that as A1 and her husband had a mobile telephone and Internet at their home address, they were likely to have a bank account.
4. Permission to appeal is granted on all grounds.
7. The Secretary of State in her Rule 24 response dated 19 November 2021 opposes the application, writing:
3. Whilst it is accepted that the judge has erred with regards to his conclusions that the appellants were required to provide a reason for their dependency upon the sponsor, it will be argued that the error is not material or fundamental to the overall outcome in the appeal. Aside from the judges conclusions on the reasons for dependency, the judge was not satisfied on the evidence presented that the appellants had demonstrated that the money they were receiving was for their essential needs (Determination [16-17]).
4. The judge noted the paucity of the evidence that had been provided to illuminate the appellant’s circumstances and what the money received had been disbursed upon. It is not for the judge to speculate on these issues and it was open to him to find that he was not satisfied that the essential needs element of dependency had been met notwithstanding the finding the finding that the sponsor was able and willing to provide financial support.
Error of law
8. The starting point for the Judge was to consider the reasons why the applications for the EEA Family Permits had been refused and why the refusal had been upheld on review.
9. At [5] of the decision under challenge the Judge writes:
5. R made three separate decision in the same terms. R refused the applications for the following reasons. The Appellants had provided evidence of money transfers between March 2018 and September 2019. This evidence in isolation did not establish financial dependency. R would expect to see substantial evidence over a prolonged period, considering the length of time S had lived in the UK. R would also expect to see full evidence of the Appellants’ financial circumstances to prove that without the financial support of S their essential living needs could not be met. S’s evidence fluctuated between £80 and £553 per week. R did not accept S could sustainably support the family with this fluctuating income. R was not satisfied that the Appellants were dependent upon S.
10. The first point taken in the application for permission to appeal challenges the Judge’s findings at [14 – 15] in which the Judge writes:
14. There are however two significant shortcomings in the evidence relied upon by the Appellants. First, the documentary evidence in my view fails to address the following important issues. Nowhere in the documentary evidence before me is there any explanation provided as to why in March 2018 the Appellants, constituting a family of two adults and five children, suddenly became dependent upon S, who is their nephew and cousin. The affidavit from A1 simply states that she is fully dependent upon S and that she does not work. The affidavit from A1’s husband simply states, ‘I am jobless and do not have any other source of income’. However, there is no explanation as to how the situation of dependency arose.
15. A was asked about this in evidence. He stated that they lost their job. They had both worked in a school canteen and lost their jobs when their employer decided to employ someone else. I have a number of reservations about this evidence. First, the reason why the family are dependent upon S is an important issue in the appeal. This is something that should have been addressed by A1 and her husband in their affidavits. Second, if A1 and her husband had been working and lost their jobs, one would expect there to be some documentary evidence of their work, and the reasons why their work ended.
11. The appellants in the grounds of appeal referred to the case of Lim at [32] in which Elias LJ found that:
“the critical question is whether the claimant is in fact in a position to support himself or not, and Reyes now makes that clear beyond doubt, in my view. That is a simple matter of fact. If he can support himself, there is no dependency, even if he is given financial material support by the EU citizen. Those additional resources are not necessary to enable him to meet his basic needs. If, on the other hand, he cannot support himself from his own resources, the court will not ask why that is the case, save perhaps where there is an abuse of rights. The fact that he chooses not to get a job and become self-supporting is irrelevant. It follows that on the facts of this case, there was no dependency. The appellant had the funds to support herself. She was financially independent and did not need the additional resources for the purpose of meeting her basic needs.”
12. Elias LJ earlier in the judgement, at [24], referred to the decision of Case C‑423/12 Reyes in relation to descendants over the age of 21 and summarised the ratio in Reyes in the following terms:
“So the reason why the party cannot support himself or herself is irrelevant; the fact that he or she cannot do so is critical. This is inconsistent with the notion that dependency is established merely from the fact that material support is provided.”
13. What arises from the decision in Lim is that dependency is therefore not simply a question of fact. It is also a question of need but, potentially, could follow from a choice not to be independent.
14. Lim raised the question whether an adult relative, who has sufficient savings to meet her own needs but chooses instead to rely on financial support from a related EU citizen so that she will be able to pass on her assets to her children, can be regarded as a direct dependent relative in the ascending line within the meaning of Regulation 7(1)(c) of the Immigration (European and Economic Area) Regulations 2006.
15. Insofar as the Judge was seeking a reason for the dependency the Secretary of States concedes in the Rule 24 response that the Judges erred in law. If what the Judge was expressing, however, is a lack of evidence to support the claim that the first appellant and her husband had become unemployed and therefore no longer had access to the income from such employment from which they would have met their essential needs, that is a line of enquiry wholly open to the Judge. The core question, of which the Judge was aware, was whether financial support was being provided by UK-based sponsor, the EEA national, and whether the appellants would not be able to meet their essential needs without such financial support. If there was a source of income arising from the employment that met those essential needs there will be no dependency upon the sponsor.
16. The grounds also assert the Judge failed to consider the documentary evidence, but such claim is without arguable merit. The Judge clearly considered the evidence with the required degree of anxious scrutiny. The Judge was not required to set out each and every aspect of the evidence and make findings upon the same.
17. The reason the Judge refers to expecting to see documentary evidence to show that the first appellant and a husband had worked and the reason(s) for them losing their jobs is because this is material to whether they earn sufficient income from that source to meet their essential needs and whether such income source was still available to them.
18. It is for the Judge to give the evidence the weight that he felt appropriate to give and it has not been made out there is anything arguably irrational about the weight the Judge gave to the evidence.
19. Regarding the Judge’s belief that the appellants must have a bank account in Pakistan because they have mobile phones and Internet access, which is said by the appellants to be speculative and not supported by any evidence, at [16] the Judge writes:
16. Second, evidence about the family’s financial circumstances in Pakistan is limited. I note two matters in particular. While a number of receipts and bills have been provided, the Appellant’s have not provided any documentary evidence of their most significant expense, namely their rent. The Appellants’ case is that the Appellant (sic) is their only source of income. I asked S about why no bank statements for the Appellants had been submitted. S stated that the Appellants live in a village and do not have bank accounts. I do not accept this for the following reasons. The Appellants themselves are silent on this issue. S last visited them some 5 years ago now and so may not be fully aware of their circumstances. S’s evidence was that A1 and her husband both worked for a number of years and so could have had use of a bank account. Further, whether or not the family live in a village, the documentary evidence does not suggest that the family were living with little use of modern technology and no need of a bank account. The Appellants have a contract with the Pakistan Telecommunication Company Limited who provide the Appellants with telephone and Internet. A1 also refers to her mobile phone bill in her explanation of her expenditure. As A1 has a mobile phone, and as the family have Internet at their home address, I consider that either A1 or her husband are likely to have a bank account.
20. In relation to the claim not to have a bank account; the sponsor denied the same and I note Pakistan is predominantly a cash based society. There is no reference to country evidence indicating a need for a bank account before a person can own a phone (as may be the case in the UK). It may be a pay as you go or internet service for which a paper bill is issued. There is no indication on the bill provided in this appeal that the method of settlement is only through a nominated bank account.
21. I note that claim by the sponsor that they live in rural area with no access to a bank account but such warrants little weight for even of true for their particular village one of the receipts for purchases made by the appellants is from CDS Jhelum, a modern supermarket in Jhelum City. If the appellants shop in this place they will have access to a bank and related account there.
22. The concerns recorded by the Judge for why two separate applications had been made as a result of the splitting of the family unit have merit. If the intention was to try and portray smaller family units who may realistically be dependent upon the UK-based sponsor where has betrayed the family’s home would indicate the sponsor would lack the required means, will be a sustainable finding that that was an attempt to mislead the ECO. The Judge does note is that a separate application has been made by the first appellant’s husband and the remainder of the family that require the correct listed picture of the circumstances it would have been preferable for both appeals to have been listed together.
23. I find that there is merit in the submission by Mr McVeety that the grounds confuse the Judges findings which relate to the issue of the credibility of the claim with intention.
24. The grounds also challenge the finding at [18] arguing the Judge raising Regulation 8(8) of the 2016 Regulations was procedurally unfair as the Entry Clearance Officer had not raised this as an issue in the refusal and that if it was raised in every extended family case by a judge of his own volition no one will be entitled or eligible for a Family Permit which cannot be right; or the purpose behind it.
25. Regulation 8(8) was inserted into the 2016 Regulations from on 15 August 2019 by The Immigration (European Economic Area) (Amendment) Regulations 2019 (S.I. 2019/1155), regs. 1, 2(5)(f). It reads:
(8) Where an extensive examination of the personal circumstances of the applicant is required under these Regulations, it must include examination of the following—
(a) the best interests of the applicant, particularly where the applicant is a child;
(b) the character and conduct of the applicant; and
(c) whether an EEA national would be deterred from exercising their free movement rights if the application was refused.
26. The amendments made by the 2019 Amendment Regulations were brought into force to give effect to the judgment of the Court of Justice of the European Union (“CJEU”) in the case of C-129/18 SM v Entry Clearance Officer, UK Visa Section, and addressing issues concerning the practical application of the 2016 Regulations. The explanatory notes at the end of the 2019 Regulations, in connection with the amendments to regulation 8 of the 2016 Regulations reads:
Regulation 2(4) and 2(5) makes provision for the judgment in C-129/18 SM v Entry Clearance Officer, UK Visa Section by amending regulation 8 of the 2016 Regulations in two ways: firstly by making it clear that the category of extended family member can include relatives of an EEA national’s spouse or civil partner; and secondly by setting out the conditions under which a child placed in a system of non-adoptive legal guardianship can be an extended family member for the purpose of the 2016 Regulations. It also sets out the criteria to be considered when performing an extensive examination of an applicant’s circumstances, as envisaged by the CJEU.
27. Ms Patel raised at the hearing, as a new point, whether the Judge had jurisdiction to consider this aspect at all. As a result of the fact the point had not been raised before and had not been developed adequately directions were given for the parties to file written arguments after which the matter was to be further considered on the papers.
28. In her skeleton argument on the point Ms Patel writes:
SKELETON ARGUMENT ON BEHALF OF THE APPELLANTS AS DIRECTED BY UPPER TRIBUNAL JUDGE HANSON REGARDING WHETHER REGULATION 8(8) OF EEA REGULATIONS 2016 WAS IN EXISTENCE AT THE APPELLANTS’ HEARING BEFORE FTTJ SILLS ON 6TH JULY 2021
1. The First Appellant is a 43 year old Pakistani female who applied for an EEA Family Permit on the 17th September 2019 to join her nephew Adeel Begum Butt ,the sponsor herein ,an EEA national from Spain residing in the U.K.
The Second Appellant is the First Appellant’s son aged 20 and the Third Appellant is the First Appellant’s daughter aged 4. They sought entry clearance to join the EEA national in the U.K. as his extended family members under regulation 8 of the EEA Regulations 2016 as amended.
2. The Entry Clearance Officer (ECO) refused their applications on the 11th October 2019 and the Appellants appealed these decisions and their appeals came before FTTJ Sills sitting at the Bradford hearing centre by CVP on the 6th July 2021 . There was no representative of the Respondent at the hearing.
3. In a determination promulgated on the 22nd July 2021 the FTTJ dismissed the Appellant’s appeals on all grounds and raised at the hearing of his own motion Regulation 8(8) of the EEA Regulations 2016-see paragraph 18 of his decision.
4. The Appellant sought permission to appeal and was granted permission to appeal Judge Sills’ decision on all grounds by FTTJ Carolyn Scott on the 19th October 2021.
5. On the 12th January 2022 Upper Tribunal Judge Hanson sitting in Bradford heard the matter and having heard the parties submissions made the following directions:
“Following Ms Patel having raised the question of the ability of the First-tier Tribunal to consider Regulation 8(8) of the 2016 Regulations through want of jurisdiction as a new point at the hearing the matter is adjourned part heard to enable further written submissions to be made as follows:
1. Ms Patel shall on behalf of the appellant file with the Tribunal and serve upon Mr McVeety a skeleton argument setting out the basis on which she asserts the First-tier Tribunal has no jurisdiction in light of the EEA Exit Regulations to consider Regulation 8(8) of the 2016 Regulations in this appeal: no later than 4 PM Friday, 28 January 2022.
2. Mr McVeety shall file with the Tribunal and serve upon Mrs Patel on behalf of the Secretary of State, no later than 4 PM 4 February 2022, a written response to the submissions made by Ms Patel.
3. Ms Patel shall have leave to file a reply provided the same is filed no later than 4 PM 11 February 2022.
The file shall be returned to Upper Tribunal Judge Hanson to enable further consideration of the question of whether the First-tier Tribunal Judge made an error of law material to the decision to dismiss the appeal, which at this stage is envisaged as being on the papers, on the first available date after 14 February 2022 with a notional time estimate of one hour. “
6. The Appellant’s counsel seeks to rely on this skeleton argument in compliance of those directions.
7. Firstly, one has to start with a consideration of the legal effect of withdrawal from the European Union .
8. The EEA Regulations were revoked in their entirety at 11pm on 31 December 2020 by paragraph 2(2) of Schedule 1(1) to the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020. They are, however, preserved for the purposes of this appeal by the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations (SI 2020 1309), ("the EEA Transitional Regulations").
9. Prior to revocation Regulation 8(8) of the EEA Regulations 2016 read as follows:
“Extended family member”
8.—
(8) Where an extensive examination of the personal circumstances of the applicant is required under these Regulations, it must include examination of the following—
(a) the best interests of the applicant, particularly where the applicant is a child;
(b) the character and conduct of the applicant; and
(c) whether an EEA national would be deterred from exercising their free movement rights if the application was refused”
10. Regulation 8(8) above was inserted on the 15th August 2019 by regulations 1 and 2(5)(f) of the Immigration (European Economic Area )(Amendment) Regulations 2019 (S.I.2019/1155).
11. Regulation 8(8) was modified after 31.12.20 by Schedule 4(4)(g) of
The Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020 (S.I. 2020/1309)
Schedule 4 (4) (g)states:
“(g) regulation 8 (“extended family member”) with the modification that paragraph (8) were omitted;”
12. It is therefore respectfully submitted that after 31.12.20 Regulation 8(8) of the EEA Regulations 2016 ceased to exist by virtue of the modification set out above.
Consequently, it is respectfully submitted that the FTTJ clearly fell into legal error when considering the Appellants’ case under Regulation 8(8) of the EEA Regulations 2016 at paragraph 18 of his decision when it did not exist at the time of the hearing or his decision.
13. It is respectfully submitted that this error is clearly a material one since the FTTJ goes onto state at paragraph 18 “…..on the basis of the second issue alone, I do not consider it would be appropriate to issue an EEA Family Permit even if the Appellants were dependent upon S.”
14. It is submitted on behalf of the Appellants that the Upper Tribunal find errors in the FTTJ decision and allow their appeals outright or alternatively remit their case to be re-heard de novo in the First Tier Tribunal.
29. In his reply Mr McVeety writes:
Further to the above and upon receipt of the Appellant’s skeleton argument the Respondent accepts that the Judge of the First Tier Tribunal erred solely in considering Regulation 8(8) for the reasons outlined in the Appellant’s skeleton argument. Additionally the Respondent submits that the Judge erred in considering that it in fact had the jurisdiction to consider Regulation 8 (8) which is of course an issue of the Respondent’s discretion. The issue was considered in the case of Ihemedu OFMs – meaning) Nigeria [2011] UKUT 00340(IAC):
“Regulation 17(4) makes the issue of a residence card to an OFM/extended family member a matter of discretion. Where the Secretary of State has not yet exercised that discretion the most an Immigration Judge is entitled to do is to allow the appeal as being not in accordance with the law leaving the matter of whether to exercise this discretion in the appellant's favour or not to the Secretary of State”
The Respondent does not accept that the error in respect of Regulation 8(8) has any impact on the remainder of the FTTJ’s findings in respect of the issue of dependency and relies on the submissions made in that respect at the First Tier Tribunal Hearing in respect of the Judge’s findings under Regulation 8(2).
30. In response Ms Patel writes:
APPELLANTS REPLY TO RESPONDENT’S WRITTEN RESPONSE
1. The Respondent accepts in her emailed Reply dated 3rd February 2022 that First Tier Tribunal Sills erred in law in considering Regulation 8(8) of the EEA Regulations 2016 for the reasons outlined in the Appellant’s skeleton argument namely that after 31.12.20 Regulation 8(8) of the EEA Regulations 2016 ceased to exist by virtue of the modification set out in Schedule 4 (4) (g) of The Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020 (S.I. 2020/1309)
2. However, the Respondent does not accept that the error in respect of Regulation 8 (8) has any impact on the remainder of the FTTJ’s findings in respect of the issue of dependency .
3. It is respectfully submitted on behalf of the Appellants that this error is clearly a material one since the FTTJ goes onto state at paragraph 18 of his determination “…..on the basis of the second issue alone, I do not consider it would be appropriate to issue an EEA Family Permit even if the Appellants were dependent upon S.”
4. The Judge has dismissed the appeal on the basis of the second issue alone ; the second issue being his consideration of Regulation 8(8) and subsequent findings under it.
So irrespective of the issue of dependency the FTTJ has gone on to dismiss it under regulation 8(8) nevertheless and therefore the error is material since and his decision should be set aside.
5. The Appellants respectfully submits that the Upper Tribunal set aside FTTJ Sills’ determination and remit their case to be re-heard de novo in the First Tier Tribunal.
31. In relation to the procedural unfairness point; the Judge was aware that Regulation 8(8) had not been raised and therefore brought this issue to the attention of the appellant’s representative, Ms Patel, at the beginning of the hearing. As noted above, the Judge records Ms Patel stating she was able to deal with the issue in submissions and did not request any further time. The fact the point may not have been taken by the Entry Clearance Officer does not prevent the Judge raising the matter himself although if he did without prior notice to the parties he was required to draw the parties attention to his thinking and give ample time for them to prepare to deal with it. This appears to be precisely what the Judge did in response to which the Judge was told that no further time was needed.
32. The claim in the grounds that it will be unfair for a judge to raise this issue in every extended family case, as no one will be eligible for or entitled to a family permit, is without merit and unsubstantiated. In SM the Court (Grand Chamber) found:
The concept of a ‘direct descendant’ of a citizen of the Union referred to in Article 2(2)(c) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC must be interpreted as not including a child who has been placed in the permanent legal guardianship of a citizen of the Union under the Algerian kafala system, because that placement does not create any parent-child relationship between them.
However, it is for the competent national authorities to facilitate the entry and residence of such a child as one of the other family members of a citizen of the Union pursuant to Article 3(2)(a) of that directive, read in the light of Article 7 and Article 24(2) of the Charter of Fundamental Rights of the European Union, by carrying out a balanced and reasonable assessment of all the current and relevant circumstances of the case which takes account of the various interests in play and, in particular, of the best interests of the child concerned. In the event that it is established, following that assessment, that the child and its guardian, who is a citizen of the Union, are called to lead a genuine family life and that that child is dependent on its guardian, the requirements relating to the fundamental right to respect for family life, combined with the obligation to take account of the best interests of the child, demand, in principle, that that child be granted a right of entry and residence in order to enable it to live with its guardian in his or her host Member State.
33. The issue in the current appeal arguably engaged two aspects of regulation 8(8), firstly the best interests of the third appellant child and secondly whether the EEA national will be deterred from exercising free movement rights if the application was refused.
34. The second element is not new law as the whole purpose of the free movement provisions in the Directive, transposed into UK law in the Regulations, is to enable and facilitate EEA nationals wishing to exercise the same to be able to do so without being deterred as a result of not being able to have family or extended family members travel with or join them in the host Member State. The Judge was entitled to assess whether the EEA national would be deterred from exercising treaty rights and was entitled to conclude on the evidence that it had not been established that he would, a point specifically conceded on his behalf. There would therefore be no unlawful interference with the right of the EEA national pursuant to the free movement provisions in the refusal.
35. The comments of the Judge in relation to the best interests of the applicant child is also in accordance with the evidence. The Judge notes that the family had effectively been split with the application of the first appellant’s husband and three further children aged 22, 17 and 15, being refused in similar terms. The Judge was entitled to note that the third appellant who was four years of age will be separated from her father which was not in the child’s best interests. There is no challenge to this specific finding and no evidence to show that it was a finding outside the range of those reasonably open to the Judge on the evidence.
36. The status of an extended family member was removed as noted by Ms Patel from 31 December 2020.
37. The decision under appeal in this case was made on 11 October 2019 and therefore before 31 December 2020. The appeal was lodged on the 24 October 2019. The decision was maintained on review on the 25 February 2020.
38. The appeal was a pending appeal on commencement day to which the 2016 Regulations were still applicable.
39. The appellants applied as extended family members (EFM) of the EEA national sponsor. It is accepted the status as an EFM is not provided for in any retaining or saving provisions following withdrawal from the European Union after 31 December 2020 as suggested by Ms Patel. The only way rights of EFM are expressly provided for in Appendix EU/EU(FP) is if they had made an application under the 2016 Regulation by 11.am on 31 December 2020 as these appellants did.
40. The Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020, Schedule 3, paragraph 5 reads:
Existing appeal rights and appeals
5. — (1) Subject to sub-paragraph (4), the provisions of the EEA Regulations 2016 specified in paragraph 6 continue to apply—
(a) to any appeal which has been brought under the Immigration (European Economic Area) Regulations 2006 and has not been finally determined before commencement day,
(b) to any appeal which has been brought under the EEA Regulations 2016 and has not been finally determined before commencement day,
(c) in respect of an EEA decision, within the meaning of the EEA Regulations 2016, taken before commencement day, or
(d) in respect of an EEA decision, within the meaning of the EEA Regulations 2016 as they continue in effect by virtue of these Regulations or the Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020, which is taken on or after commencement day.
(2) For the purposes of paragraph (1)—
(a) an appeal is not to be treated as finally determined while a further appeal may be brought and, if such a further appeal is brought, the original appeal is not to be treated as finally determined until the further appeal is determined, withdrawn or abandoned; and
(b) an appeal is not to be treated as abandoned solely because the appellant leaves the United Kingdom.
(3) The revocation of the EEA Regulations 2016 does not affect the application of the Immigration (European Economic Area) Regulations 2006 to an appeal that falls within paragraph 3(1) of Schedule 4 to the EEA Regulations 2016.
(4) The provisions specified in paragraph 6 do not apply to the extent that the provisions of the EEA Regulations 2016 specified in paragraph 6 continue to apply to an appeal or EEA decision by virtue of the Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020.
41. The position of the parties a per their pleadings is that although the Judge was right to determine the appeal pursuant to the 2016 Regulations, regulation 8(8) was no longer available to him as it had been revoked with no saving provisions.
42. Ms Patel asserts the Judge erred in law in a material manner as the sole basis for dismissing the appeal was as a result of the Judge considering Regulation 8(8).
43. It is important the determination is read as a whole. At [17] the Judge writes:
17. On the evidence before me, I do not accept the Appellants’ account of why they became dependent upon S due to the weakness of the evidence on this issue as set out above. I also do not accept that the Appellants have provided full disclosure of their financial circumstances in Pakistan. It follows that whilst I accept that S is providing financial support to the Appellants, the Appellants have not established that they require this support to meet their essential living needs. I thus find that the Appellants have not established that they are dependent upon S. It follows that the Appellants have not established that they are extended family members of S set out at Reg 8 of the EEA Regulations. I therefore dismissed their appeal under the EEA regulations.
44. The Judge was therefore not satisfied that the pivotal aspect of a claim by an EFM, that of dependency on the EEA national sponsor, had been established.
45. The assertion the Judge dismissed the appeal solely by reference to regulation 8(8), giving rise to the submission of material error, is undermined when one looks at the specific wording of [18] in which the Judge writes
18. I add one further matter. I rated Ms Patel at the outset Reg 8(8). I raised this as the Appellants form part of an entirely separate family unit of 7 to S, and S had not lived in the same country as the Appellants for over 20 years, S having left Bangladesh at a very young age. Ms Patel stated she was able to deal with this issue in submissions and did not request any further time. Two issues arise. First, as noted the Appellants of half a family. A 3 is 4 years old. While her father also has either an application pending, the grant of a Family Permit to the Appellants could lead to the separation of A 3 from her father at least until his application was resolved. This would not be in the child’s best interests. Second, and more importantly, Ms Patel accepted that S would not be deterred from exercising free movement rights if the application was refused. The outcome of this appeal is irrelevant to whether S remains in the UK or decides to exercise his free movement rights in some other way. His evidence that he would not go back to Spain or move to Pakistan in the event of a refusal. In these circumstances, and on the basis of the second issue alone, I do not consider it will be appropriate to issue an EEA Family Permit even if the Appellants were dependent upon S.
46. It is important not to lose sight of basic principles of EU law and the purpose of the Directive which is to enable individuals who wish to exercise rights of free movement to do so freely in relation to both family members in qualifying EFM. The need to consider whether an individual would be deterred from exercising free movement rights, reflected in regulation 8(8) is not a right created by the 2016 regulations but a reflection within the same of the basic principle of EU law.
47. The reference by the Judge to the second issue, whilst reflecting the above principle, is not the Judge allowing the appeal solely on this basis. The fact S would remain in the UK irrespective of the outcome reflects the point accepted by the appellant’s advocate, no more. The Judge states that on that second issue it was not appropriate to issue an EU family permit in any event, is not a statement by the Judge that that is the sole basis on which the appeal is not allowed as the Judge had already confirmed at [17] that he dismissed the appeals as the evidence did not establish the required element of dependency. I find at [18] the Judge considers a separate element and gives his opinion upon the same which does not take anything away from the fact that prior to considering that element the Judge has set out clearly that the appellants failed in their appeals for the reasons stated.
48. I find the grounds fail to establish legal error material to the decision to dismiss the appeal sufficient to warrant the Upper Tribunal interfering any further in this matter.

Decision
49. All there is no material error of law in the Immigration Judge’s decision. The determination shall stand.

Anonymity.
50. The First-tier Tribunal made no order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005. I make no such order pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

Signed……………………………………………….
Upper Tribunal Judge Hanson
Dated 10 June 2022