Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2022-003179

First-tier Tribunal No: EA/16542/2021

THE IMMIGRATION ACTS

Decision & Reasons Issued:

13th May 2025

Before

UPPER TRIBUNAL JUDGE HANSON
DEPUTY UPPER TRIBUNAL JUDGE COLE

Between

MALIKHA NAWAZISH
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Shea instructed by Whitefield Solicitors.
For the Respondent: Mr Tan, a Senior Home Office Presenting Officer.

Heard at Manchester Civil Justice Centre on 6 May 2025

DECISION AND REASONS
1. Both members of the panel have contributed to this decision.
2. In a determination sealed on 14 March 2025 the Upper Tribunal found an error of law in a decision of the First-tier Tribunal and set that decision aside. The appeal comes back before this Panel to enable it to substitute a decision to either allow or dismiss the appeal.
3. The Appellant, a female citizen of Pakistan born on the 5 September 2003, made an application under the EU Settlement Scheme (EUSS) which was refused by the Secretary of State in a decision dated 24 November 2021.
4. The Appellant had been issued with a Family Permit under the EEA Regulations as a relative of an EEA national on 13 April 2019, which expired on 13 October 2019, and entered the UK using the same.
5. As the Appellant had not demonstrated that the Family Permit remained valid, the decision-maker concluded she had not established that she met the requirements for settled status as a family member of a relevant EEA citizen under the EUSS.
6. Consideration was then given to whether the Appellant satisfied the eligibility requirements for pre-settled status under the EUSS, but the decision-maker was not satisfied that she had provided sufficient evidence to establish that she is a dependent relative of a relevant EEA citizen.
7. It was found that the information available to the decision-maker did not show that the Appellant met the eligibility requirements for settled status set out in rule EU11 or for pre-settled status set out in rule EU14 of Appendix EU to the Immigration Rules, leading to the application being refused under rule EU6.
8. The Appellant’s position is set out in the skeleton argument to be found in her appeal bundle. In the section’s headed “List of Issues” and “Conclusion” it is written:
LIST OF ISSUES
Issue 1. The Appellant’s entitlement to status under the EUSS Scheme.
10. Article 10 (3) of the UK/EU Withdrawal Agreement requires the Home Office to process EEA family permit applications from Extended Family members as long as they applied by 31 December 2020.
11. The UK has facilitated the Appellant’s right to reside in the UK by issuing an EEA Family Permit and is therefore subject to the Withdrawal Agreement as per the case law of Vasa and Hasanaj v SSHD [2024].
12. As the Appellant was issued with a Family Permit the Appellant was entitled to enter and reside in the United Kingdom under Article 10 (2) an Article 10 (3) of the Withdrawal Agreement as an application had been made and granted pursuant to the EEA Reg 2016.
13. EU 14 provides a family member is eligible for limited leave to remain if they can satisfy one of two conditions, one being that they have a relevant document which the Appellant holds.
14. In addition, under Paragraph 10 (2) of the Withdrawal Agreement it is stated to Appellant shall retain his right of residence in the host state provided the residence continues thereafter which it does in this case.
15. In order to benefit from the additional rights confirmed by the Withdrawal Agreement the Appellant would have had to have taken positive steps to facilitate their residence rights under the EEA Regulations before December 2020. In this particular case the Appellant had done so.
16. In addition, the Appellant was a minor at the time of applying to the EUSS Scheme and had no control over the timing of the submission of the EUSS application, the Respondent failed to give this factor any weight.
17. The Respondent failed to recognise the EEA Family Permit application was submitted before Brexit based on dependency and that dependency has been proven by the issuance of an EEA Family Permit.
18. The Appellant is the dependent cousin of the EEA National Sponsor, evidence of this has been provided and accepted which resulted in the issue of an EEA Family Permit.
19. The Appellant has been resident in the UK for more than 5 years.
20. The entitlement for Settled status under the EU settlement Scheme requires the Appellant is dependent upon the EEA national and resident in the UK for 5 years.
21. The fact the Appellant has been issued with an EEA Family permit is sufficient evidence of her dependency on the EEA national sponsor.
22. As per evidence of continued dependency, the Appellant continues to be supported financially by the sponsor for her daily needs to date by regular payments by the sponsor to the Appellant’s father.
23. The Sponsor is working in the United Kingdom to provide for himself and his family members, the Appellant continues to be dependent upon the EEA Sponsor.
24. Furthermore, the parents and the remainder siblings have been granted with Settled status under the EU SS Scheme with the same set of circumstances.
25. As a dependent child the Appellant does not have any utility bills or payments to her name, however regular payments continue to be sent to the Appellant’s father to date as can be seen by the extensive evidence in the Appellant’s bundle.
CONCLUSION
26. The Appellant has provided clear evidence to demonstrate her relationship and dependency to her EEA sponsor and as a result was granted and EEA Family permit pre-Brexit. This is a relevant document. The Appellant has also provided evidence to demonstrate that her family are financially dependent upon the Sponsor and has been in receipt of historical financial support which continues to date.
27. The Appellant, her parents and siblings continue to be financially dependent upon the sponsor.
28. The Withdrawal Agreement was drafted to protect the rights of EEA nationals and their family members that had been established and had been in place before 31st December 2020. As the Applicant applied a child there is a duty on section 55 of the Borders Citizenship and Immigration Act 2009 to have regard to the need and safeguard and promote the welfare of a child under the age of 18 in the UK.
29. It is therefore submitted that the Respondent has made a decision which is not in accordance with the law.
30. The Appellant invites a respected Upper Tribunal to allow the appeal and grant Settled status under the EUSS Scheme to the Appellant.

9. The Secretary of State’s position statement, dated the 28 April 2025, drafted by Mr Tan, rejects the Appellant’s arguments. The operative part of that document reads:
1. Further to the Error of Law decision issued 10 March 2025, the SSHD sets out her position in response to the ASA and evidence on the following issues as outlined at [4-6] of the Error of Law decision:
a) Whether the A can satisfy EUSS requirements – by virtue of having previously been issued an EEA family permit under the Regulations.
b) Whether this case can be distinguished from the facts and guidance in Vasa v The Secretary of State for the Home Department [2024] EWCA Civ 777 (10 July 2024)
2. The SSHD apologises for the marginally late service of this statement due to unexpected workload pressures on the day of service. It is anticipated that any inconvenience caused will be mitigated by the clarity provided on the narrow issues highlighted in advance of the hearing on 06 May 2025.
EUSS requirements
3. The ASA appears to conflate argument in relation to the EUSS and the Withdrawal Agreement (WA).
4. The SSHD submits that ASA fails to address the specific requirements of EUSS. Whilst the A was issued a family permit (validity 13/04/19 – 13/10/19) and thus a relevant document; as per Annex 1 it is also required to be valid and not expired, or if it had expired that a subsequent relevant document was issued.
5. This is reflected in the SSHD’s guidance at pages 30-31: EU Settlement Scheme EU, other EEA, Swiss citizens and family members.
6. Notwithstanding any consideration of the evidence of dependence, the A cannot meet the EUSS requirements on this basis. Furthermore, any argument that the A is entitled to settled status under EUSS is, notwithstanding the above, without merit or consideration of the requirement of a five-year continuous qualifying period being established prior to the date of application. Given the A had only been in the UK for less than two years at the date of application (09 February 2021), there is no basis for argument that the rule EU11 is met.
7. In relation to the issue of dependence, the SSHD’s refusal decision was not based solely on the absence of a relevant document, but also the failure to show dependence as required by the rule.
8. The SSHD does not accept that the evidence sufficiently demonstrates dependence as required and will address this issue at the resumed hearing in further detail.
Distinguished from Vasa v The Secretary of State for the Home Department [2024] EWCA Civ 777 (10 July 2024).
9. The SSHD submits that the instant case can be distinguished from Vasa on at least the following basis.
10. The case of Vasa and Hasanaj related to appellants who had been admitted to the UK by way of an immigration officer’s stamp in their passports under the EEA Regulations 2016. There was no indication or understanding that admission was limited. In the instant case, the appellant (‘A’) entered the UK with an EEA Family Permit which obliged the Immigration Officer to permit entry subject to documentary requirements being met.
11. The A held a family permit valid from 13 April 2019 – 13 October 2019. This entitled her to an initial period of residence of three months (pursuant to Article 6 of the Directive / Regulation 13 of the EEA Regulations). Any objective view was that her permitted entry and residence was for a maximum three-month period.
12. Entry and initial residence were facilitated on entry on 05 June 2019 pursuant to then enforceable EU law and not solely in accordance with national legislation.
13. The initial right of residence expired before the end of the transition period (11pm 31 December 2020), as did the EEA family permit. There has been no intervening successful application to facilitate residence, and therefore at the end of the transition period there was no facilitation of residence in accordance with national legislation that could be retained.
14. The WA does not create a right of residence at the end of the transition period, it only protects those rights which existed at that date subject to conditions. The A made her application on 16 February 2021, after the transition period ended. The A cannot fall under either category of persons set out in Article 10(2) or (3) of the WA. Although there had been a historic facilitation of her entry and residence to the United Kingdom in mid-2019, in accordance with EU law; there was no facilitation of his entry and residence in accordance with national legislation at the end of the transition period. That is the key relevant date. The A therefore does not come within personal scope of the WA.
Conclusion
15. The Tribunal is invited to dismiss the appeal.
Discussion and analysis
10. The Appellant applied under the EUSS, was refused, and appealed under the Immigration (Citizens' Rights Appeals) (EU Exit) Regulations 2020 (‘the Citizens Rights Appeals Regulations’)
11. Regulation 3 of the Citizens Rights Appeals Regulations provides that a person (“P”) may appeal against a decision made on or after exit day…. (c) not to grant any leave to enter or remain in the United Kingdom in response to P’s relevant application.
12. Regulation 8 of the Citizens Rights Appeals Regulations set out the grounds of appeal which are, in summary, (a) that the decision breaches a person’s rights under the Withdrawal Agreement, and, (b) that the decision, inter alia, is not in accordance with the provision of the immigration rules by virtue of which it was made or where the decision is not in accordance with residence scheme immigration rules.
13. In relation to the EUSS application, the position of the Secretary of State is that it is a mandatory requirement of an applicant such as the Appellant to have a valid Relevant Document when the application is made. As the Appellant’s Family Permit expired on 13 October 2019, she could not satisfy this requirement.
14. We have not been referred to any authority suggesting the Secretary of State’s position is wrong in law. It is also relevant to note that no application was made for a further Family Permit before 13 October 2019, and no application had been made before the specified date that remained outstanding at that time in any event.
15. We do not find the Appellant has established that the refusal of her application under the EUSS is wrong in law or contrary the scheme rules and dismiss the appeal on that basis.
16. In relation to the Appellant’s case that the refusal is contrary to her rights under the Withdrawal Agreement, the starting point has to be is to establish whether she has any such rights.
17. The Appellant is a citizen of Pakistan. The Withdrawal Agreement does not confer new rights as its primary purpose was to ensure that any rights that existed in EU law prior to 11 PM 31 December 2020 are preserved. We accept the Secretary of State has the power, which she has exercised on occasions, to grant terms more favourable to those included in the Withdrawal Agreement. That is, however, a matter for her and it has not been made out that any such provision has been made in relation to a person in the situation of this Appellant.
18. Even if the Appellant might have succeeded under the Immigration (EEA) Regulations 2016 (‘the 2016 Regulations’) had she made an application prior to the previous Family Permit expiring, that is not a matter for us today. The fact is no such application was made.
19. We have considered Article 10 (2) and 10 (3) of the Withdrawal Agreement. These provisions read:
2. Persons falling under points (a) and (b) of Article 3(2) of Directive 2004/38/EC whose residence was facilitated by the host State in accordance with its national legislation before the end of the transition period in accordance with Article 3(2) of that Directive shall retain their right of residence in the host State in accordance with this Part, provided that they continue to reside in the host State thereafter.
3. Paragraph 2 shall also apply to persons falling under points (a) and (b) of Article 3(2) of Directive 2004/38/EC who have applied for facilitation of entry and residence before the end of the transition period, and whose residence is being facilitated by the host State in accordance with its national legislation thereafter.
20. Article 3 of Directive 2004/38/EC defines the beneficiaries of the free movement Convention the following terms:
Article 3
Beneficiaries
1. This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.
2. Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons:
(a) Any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependents or members of the household of the Union citizen having the primary right of residence, where serious health grounds strictly require the personal care of the family member by the Union citizen;
(b) the partner with whom the Union citizen has a durable relationship, duly attested.
The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people.
21. The Appellant’s entry was facilitated by the host State, the UK, in accordance with national legislation before the end of the transition period in accordance with Article 3 (2) of the Directive as evidenced by the grant of a Family Permit valid from 13 April 2019 to 13 October 2019, and is a person who has continued to reside in the host State thereafter, but she did not have any extant right of residence from 13 October 2019.
22. Mr Shea submitted the Appellant had rights under EU law but there is no provision in Directive 2004/38/EC which confers any right upon an extended family member which is, therefore, a matter of domestic law.
23. We accept that the 2016 Regulations provide that a person who is granted a right of residence as an extended family member will be treated as a family member, in relation to whom Mr Shea’s arguments may have some traction. However, the definition of a “family member” in regulation 6 reads:
“family member”—
(a) has the same meaning as in paragraph (1) of regulation 7 of the EEA Regulations 2016 (read with paragraph (2) of that regulation) as those Regulations had effect immediately before IP completion day, and
(b) includes an extended family member within the meaning of regulation 8 of those Regulations as they had effect immediately before IP completion day if that person—
(i) immediately before IP completion day satisfied the condition in regulation 8(5) of those Regulations (durable partner), or
(ii) holds a valid EEA document (regardless of whether that document was issued before or after IP completion day);
24. The Appellant cannot satisfy the condition in regulation 8(5) as that refers to a person being the partner (other than a civil partner) of, and in a durable relationship with, an EEA national or the child (under the age of 18) of that partner and is able to prove this to the decision-maker.
25. The Appellant did not have a valid EEA document, as the one that had been issued in April 2019 had expired in October 2019, meaning she could not satisfy this requirement.
26. Therefore, the Appellant did not retain a right of residence as her grant under the domestic law had expired in 2019.
27. The Upper Tribunal have found that if a person’s residence was facilitated prior to the specified date because an application has been made and granted, or a person has made an application to the 2016 Regulations before the specified date which had not been granted, their rights were protected by the terms of the Withdrawal Agreement, bringing them within the personal scope of Article 10, either because they had an existing right which would have been retained provided they continue to reside in the UK following entry after grant by the Secretary of State, or because they had a right under EU law for an application made to be properly considered – see Celik v Secretary of State for the Home Department [2022] UKUT 00220, a decision upheld by the Court of Appeal in Celik v Secretary of State the Home Department [2023] EWCA Civ 921.
28. We referred the parties to the provision in the 2016 Regulations which shows domestic law requires that a person who entered the UK as an extended family member needed to make an application if their residence document expired and/or to have extant residence documentation, which is to be found in regulation 7 of the 2016 regulations, and specifically regulation 7(3) which reads:
(3) A person (“B”) who is an extended family member and has been issued with an EEA family permit, a registration certificate or a residence card must be treated as a family member of A, provided—
(a) B continues to satisfy the conditions in regulation ; and
(b) the EEA family permit, registration certificate or residence card remains in force.
29. The Appellant cannot, under this provision claim to be treated as a family member of the qualifying EEA national for even if she was able to establish that she remained a dependent family member, and so could satisfy the conditions in Regulation 8, it is a specific requirement that the EEA family permit, registration certificate or residence card remains in force. As the Appellant’s Family Permit had expired in October 2019, she could not satisfy this requirement and therefore had no right in law to be treated as a family member at the specified date.
30. Mr Tan also referred us to regulation 14 (2) which reads:
(2) A person (“P”) who is a family member of a qualified person residing in the United Kingdom under paragraph (1) or of an EEA national with the right of permanent residence under regulation 15 is entitled to remain in the United Kingdom for so long as P remains a family member of that person or EEA national.
31. If one considers the wording of that provision with that to be found in regulation 7(3), it can be seen the Appellant had no right to be treated as a family member of the relevant EEA national as she did not hold an EEA family permit, registration certificate or residence card which remained in force at the end of the transition period.
32. We do not find therefore that the Appellant has established that she has any right under EU law which brought her within the personal scope of the Withdrawal Agreement.
33. Mr Shea submitted that, in any event, the Appellant was entitled to rely upon the proportionality provisions to be found in the Withdrawal Agreement but, as found by the Upper Tribunal in Celik, where a person has no substantive right under the Withdrawal Agreement they cannot invoke the concept of proportionality under Article 18.1r of the Withdrawal Agreement or the principles of fairness, in order to succeed in an appeal under the Immigration (Citizens' Rights Appeals) (EU Exit) Regulations 2020.
34. In relation to the argument based upon a decision of the Court of Appeal in Hasanaj and Vasa v The Secretary of State for the Home Department [2024] EWCA Civ 777 , often referred to as the “mistaken stamps case”, we do not find this assists the Appellant. Those appeals concerned individuals who came into the UK after immigration officers at the border stamped their passports with the words “Admitted to the United Kingdom under the Immigration (EEA) Regulations 2016”. These individuals only qualified as extended family members, and did not have any right of entry under those Regulations. The applications under the EUSS were refused on the basis they did not hold the ‘relevant document’ required under Appendix EU which evidenced that residence had been ‘facilitated’ in accordance with national law. They appealed those refusals.
35. The Court of Appeal held that the stamps in the passports demonstrated that immigration officers decided to admit individuals and allow them to enter the UK and reside here with their EU national family members. Those decisions had not been revoked and amounted to a ‘facilitation of residence’, such that the refusal to accept the stamps as evidencing the decision to admit them to the UK involved a breach of Article 18 (1) (l) (iv) of the Withdrawal Agreement
36. The key point in the Court of Appeal judgement, highlighted by Mr Tan in his position statement, is that the rights the Court of Appeal found had been conferred as a result of those individuals’ residence being facilitated by the stamp had not been revoked and therefore continued to be a valid right. The position in the current appeal is that the family permit granted to this appellant was only valid to 13 October 2019 and after this date she has provided no evidence she had any right under domestic or EU law to reside in the UK, which would give rise to a right protected by the Withdrawal Agreement meant.
37. We do not find the Appellant has therefore established, on the basis of the grounds of appeal available to her, that the Secretary of State has erred in law in relation to her interpretation of the EUSS or arrived at a decision that is contrary to the Appellant’s rights under the Withdrawal Agreement. On that basis we must dismiss the appeal.
38. We accept the Appellant may be somewhat confused as she applied to come to the UK with her family who secured entry in 2019. Applications were subsequently made and refused for all and further applications made which were granted for all other family members except the Appellant. We have noted that chronology but do not find it warrants any different decision being made in relation to the grounds of appeal available to the Appellant. We would recommend, however, that following receipt of this decision she seeks legal advice to ascertain whether there are any other options open to her, for example under the ECHR, which may form the basis of a different application. That is, however, a matter for her.
Notice of Decision
39. We dismiss the appeal.

C J Hanson

Judge of the Upper Tribunal
Immigration and Asylum Chamber

12 May 2025