UI-2022-005656 & UI-2022-005657

• Status of case: Unreported
• Hearing date: 2 Jun 2025
• Promulgation date: 16 Jun 2025
• Publication date: 1 Jul 2025
• Last updated on: 1 Jul 2025

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2022-005656
First-tier Tribunal No: EA/13585/2021
Case No: UI-2022-005657

First-tier Tribunal No: EA/16195/2021

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 16 June 2025

Before

UPPER TRIBUNAL JUDGE JACKSON

Between

GALINA IGNATEVA
SOFIA IGNATEVA
(NO ANONYMITY ORDERS MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: In person, with Mr G Bhatia, Sponsor
For the Respondent: Mr P Deller, Senior Home Office Presenting Officer

Heard at Field House on 2 June 2025


DECISION AND REASONS
1. This has been a hybrid hearing which has not been objected to by the parties. The form of hearing was by video, using Teams for the Appellants and Sponsor, with Mr Deller and in interpreter appearing in person in Field House. There were no technical difficulties for the hearing itself and the papers were all available electronically.
2. In a decision dated 17 January 2025, I found an error of law in the decision of First-tier Tribunal Judge Hosie promulgated on 23 August 2022, in which the Appellants’ appeals against the decisions to refuse their applications for EU Family Permits dated 15 November and 28 August 2021 respectively, were dismissed. As a result, the decision of the First-tier Tribunal was set aside for a de novo hearing to remake the appeals.
3. The Appellants are nationals of the Russian Federation, born on 13 July 1981 and 29 March 2001 respectively. The First Appellant is in a relationship with Mr Bhatia (the “Sponsor”), a Swedish national and the Second Appellant is the First Appellant’s daughter. The First Appellant made an application on 31 May 20211 with the Second Appellant as her dependent, for an EU Family Permit under Appendix EU-FP to the Immigration Rules.
4. The Respondent refused the applications on the basis that she was not satisfied that the Appellants were family members of a relevant EEA citizen as defined in the Immigration Rules.
5. The two grounds of appeal open to the Appellants to challenge the Respondent’s refusal are, (i) whether the decisions were contrary to the requirements of Appendix EU-FP to the Immigration Rules; and (ii) whether the decisions were contrary to the EU Withdrawal Agreement.
The appeal
Relevant legal background – Immigration Rules
6. References to the Immigration Rules are to those in place at the date of applications in these appeals.
7. Paragraph FP6 of Appendix EU-FP to the Immigration Rules states that an applicant meets the eligibility requirements for entry clearance to be granted under this Appendix in the form of an EU Settlement Scheme Family Permit where the Entry Clearance Officer is satisfied that at the date of application:
(a) The applicant is a specified EEA citizen or a non-EEA citizen;
(b) The applicant is a family member of a relevant EEA citizen;
(c) The relevant EEA citizen is resident in the UK or will be travelling to the UK with the applicant within six months of the date of application;
(d) The applicant will be accompanying the relevant EEA citizen to the UK (or joining them in the UK) within six months of the date of application; and
(e) The applicant (“A”) is not the spouse, civil partner or durable partner of a relevant EEA citizen (“B”) where a spouse, civil partner or durable partner of A or B has been granted an entry clearance under this Appendix, holds a valid EEA family permit issued under regulation 12 of the EEA Regulations or has been granted leave to enter or remain in the UK in that capacity under or outside the Immigration Rules.
8. Annex 1 to Appendix EU-FP contains relevant definitions for these requirements as follows. “Family member of a relevant EEA citizen” is defined, so far as relevant to these appeals, as:
a person who has satisfied the entry clearance officer, including by the required evidence of family relationship, that they are:
(a) the spouse or civil partner of a relevant EEA citizen, and:

(i) (aa) the marriage was contracted or the civil partnership was formed before the specified date; or
(bb) the applicant was the durable partner of the relevant EEA citizen before the specified date (the definition of ‘durable partner’ in this table being met before that date rather than at the date of application) and the partnership remained durable at the specified date; and
(ii) the marriage or civil partnership continues to exist at the date of application; or
(b) …; or
(c) the durable partner of a relevant EEA citizen, and:
(i) the partnership was formed and was durable before the specified date; and
(ii) the partnership remains durable at the date of application; and
(iii) the date of application is after the specified date; and
(iv) where they were resident in the UK and Islands as the durable partner of the relevant EEA citizen before the specified date, the definition of ‘durable partner’ in this table was met before that date as well as at the date of application, and the partnership remained durable at the specified date; or
(d) the child or dependent parent of a relevant EEA citizen, and the family relationship:
(i) existed before the specified date (unless, in the case of a child, the person was born after that date, was adopted after that date in accordance with a relevant adoption decision or after that date became a child within the meaning of that entry in this table on the basis of one of sub- paragraphs (a)(iii) to (a)(xi) of that entry); and
(ii) continues to exist at the date of application; or
(e) the child or dependent parent of the spouse or civil partner of a relevant EEA citizen, as described in subparagraph (a) above, and:
(i) the family relationship of the child or dependent parent to the spouse or civil partner existed before the specified date (unless, in the case of a child, the person was born after that date, was adopted after that date in accordance with a relevant adoption decision or after that date became a child within the meaning of that entry in this table on the basis of one of subparagraphs (a)(iii) to (a)(xi) of that entry); and
(ii) all the family relationships continue to exist at the date of application; or
(f) …
9. “Durable partner” is defined as follows:
(a) the person is, or (as the case may be) was, in a durable relationship with the relevant EEA citizen (or, as the case may be, with the qualifying British citizen), with the couple having lived together in a relationship akin to a marriage or civil partnership for at least two years (unless there is other significant evidence of the durable relationship); and
(b) where the applicant was resident in the UK and Islands as the durable partner of a relevant EEA citizen before the specified date, the person held a relevant document as the durable partner of the relevant EEA citizen or, where there is evidence which satisfies the entry clearance officer that the applicant was otherwise lawfully resident in the UK and Islands for the relevant period before the specified date (or where the applicant is a joining family member) or where the applicant relies on the relevant EEA citizen being a relevant person of Northern Ireland, there is evidence which satisfies the entry clearance officer that the durable partnership was formed and was durable before the specified date; and
(c) it is, or (as the case may be) was, not a durable partnership of convenience; and
(d) neither party has, or (as the case may be) had, another durable partner, a spouse or a civil partner with (in any of those circumstances) immigration status in the UK or the Islands based on that person’s relationship with that party.
10. An EEA citizen is defined, inter alia, in the table in paragraph (a) as a national of Sweden. “Relevant EEA citizen” (where the date of application under this Appendix is before 1 July 2021) is defined, so far as relevant to these appeals, as follows:
(a) an EEA citizen (in accordance with sub-paragraph (a) of that entry in this table) who:
(i) has been granted indefinite leave to enter or remain or who has limited leave to enter or remain under (as the case may be) paragraph EU2 or EU3 of Appendix EU to these Rules (…); or
(ii) …
(b) …
(c) …
(d) …
11. Annex 1 to the Appendix also sets out the required evidence of family relationship, so far as relevant to this appeal, as follows:
in the case of:
(a) a spouse:
(i) a relevant document as the spouse of the relevant EEA citizen (or, as the case may be, of the qualifying British citizen), or a valid document of record of a marriage recognised under the law of England and Wales, Scotland or Northern Ireland or of the Islands; and
(ii) (aa) where the marriage to the relevant EEA citizen was contracted after the specified date and the applicant is not the specified spouse or civil partner of a Swiss citizen, a relevant document as the durable partner of the relevant EEA citizen or, where the applicant was not resident in the UK and Islands as the durable partner of the relevant EEA citizen before the specified date (or there is evidence which satisfies the entry clearance officer that the applicant was otherwise lawfully resident in the UK and Islands for the relevant period before the specified date, or the applicant is a joining family member) or where the applicant relies on the relevant EEA citizen being a relevant person of Northern Ireland, there is evidence which satisfies the entry clearance officer that the durable partnership was formed and was durable before the specified date; or
(bb) …; or
(b) a civil partner:
(i) a relevant document as the civil partner of the relevant EEA citizen (or, as the case may be, of the qualifying British citizen); a valid civil partnership certificate recognised under the law of England and Wales, Scotland or Northern Ireland or under any equivalent legislation in the Islands; or the valid overseas registration document for a relationship which is entitled to be treated as a civil partnership under the Civil Partnership Act 2004 or under any equivalent legislation in the Islands; and
(ii) (aa) where the civil partnership with the relevant EEA citizen was formed after the specified date and the applicant is not the specified spouse or civil partner of a Swiss citizen, a relevant document as the durable partner of the relevant EEA citizen or, where the applicant was not resident in the UK and Islands as the durable partner of the relevant EEA citizen before the specified date (or there is evidence which satisfies the entry clearance officer that the applicant was otherwise lawfully resident in the UK and Islands for the relevant period before the specified date, or the applicant is a joining family member) or where the applicant relies on the relevant EEA citizen being a relevant person of Northern Ireland, there is evidence which satisfies the entry clearance officer that the durable partnership was formed and was durable before the specified date; or
(bb) where the civil partnership with the qualifying British citizen was formed after the date and time of withdrawal, evidence which satisfies the entry clearance officer that the durable partnership was formed and was durable before the date and time of withdrawal; or
(c) a child – a relevant document issued on the basis of the relevant family relationship or their evidence of birth, and:
(i) where the applicant is aged 21 years or over, evidence which satisfies the entry clearance officer that the requirements in sub-paragraph (b)(ii) of the entry for ‘child’ in this table are met; and
(ii) …,
evidence which satisfies the entry clearance officer that the requirements in the second sub-paragraph (a) or the second sub-paragraph (b) of the entry for ‘family member of a relevant EEA citizen’ in this table are met; or
(d) …
(e) a durable partner:
(i) (aa) …; or
(bb) (where the applicant was not resident in the UK and Islands as the durable partner of a relevant EEA citizen before the specified date, or where the applicant is a joining family member, and where sub-paragraph (e)(i)(cc) below does not apply) evidence which satisfies the entry clearance officer that the durable partnership with the relevant EEA citizen was formed and was durable before the specified date; or
(cc) …; or
(f) …
In addition: …
Relevant legal background – Civil Partnership Act 2004
12. Part 5 of the Civil Partnership Act 2004 makes provision for civil partnerships formed or dissolved abroad, with chapter 2 of the same dealing with overseas relationships treated as civil partnerships.
13. Schedule 20 to the Civil Partnership Act 2004 sets out the meaning of overseas relationship and specified relationships. Part 1 deals with same-sex relationships (so is not applicable to these appeals and in any event only refers to marriage in relation to Swedent) and Part 2 deals with opposite-sex relationships by stating that a relationship is specified for the purposes of section 213(1)(b) (specified relationships between two people who are not of the same sex) (meaning of “overseas relationship”) if it is registered in a country or territory given in the first column of the table and fits the description given in relation to that country or territory in the second column. There is no entry in the table in respect of Sweden.
Relevant legal background – EU Withdrawal Agreement
14. The personal scope of the EU Withdrawal Agreement is set out in Article 10, so far as relevant to these appeals, as follows:
1. Without prejudice to Title III, this Part shall apply to the following persons:
(a) Union citizens who exercised their right to reside in the United Kingdom in accordance with Union law before the end of the transition period and continue to reside there thereafter;
(b) …
(c) …
(d) …
(e) family members of the persons referred to in points (a) to (d), provided that they fulfil one of the following conditions:
(i) …
(ii) they were directly related to a person referred to in points (a) to (d) and resided outside the host State before the end of the transition period, provided that they fulfil the conditions set out in point (2) of Article 2 of Directive 2004/38/EC at the time they seek residence under this Part in order to join the person referred to in points (a) to (d) of this paragraph;
(iii) …
(f) …
2. …
3. …
4. Without prejudice to any right to residence which the persons concerned may have in their own right, the host State shall, in accordance with its national legislation and in accordance with point (b) of Article 3(2) of Directive 2004/28/EC, facilitate entry and residence for the partner with whom the person referred to in points (a) to (d) of paragraph 1 of this Article has a durable relationship, duly attested, where that partner resided outside the host State before the end of the transition period and continues at the time the partner seeks residence under this Part.
5. In the cases referred to in paragraphs 3 and 4, the host State shall undertake an extensive examination of the personal circumstances of the persons concerned and shall justify any denial of entry or residence to such persons.
15. Directive 2004/38/EC provides, so far as relevant:
Article 2 – Definitions
1. …
2. ‘family member’ means:
(a) the spouse;
(b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of legislation of a Member State, if the legislation of the hose Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State;
(c) the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b);
(d) …
3. ‘host Member State’ means the Member State to which a Union citizen moves in order to exercise his/her right of free movement and residence.
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, or 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.
Evidence
16. The Appellants and Sponsor were given the opportunity to make written statements in support of their appeals and to seek permission to give oral evidence from the relevant Swedish and Russian authorities at the hearing (the countries from which they joined the hybrid hearing); but declined the opportunity to do either. No written statements were before the First-tier Tribunal beyond the grounds of appeal and at that stage, the appeals were determined on the papers such that there was also no previous oral evidence. The evidence before the Tribunal in these appeals is therefore limited to the following documentary evidence only.
17. The application form dated 31 May 2021 for a European Family Permit for both Appellants under the category which includes a close family member of an EEA national with UK immigration status under the EU Settlement Scheme. The First Appellant describes her relationship status as ‘married or a civil partner’, stating that it was a registered partnership in Sweden entered in to on 1 September 2020. The relationship is said to have begun on 1 September 2020 and the First Appellant and Sponsor were said to have begun living together on 1 September 2020; having first met on 7 August 2019 in Germany. An address in Estonia was given for both of them on the application form.
18. A ‘Cohabitation Agreement’ dated 1 September 2020 from Sweden, according to the Cohabitees Act (2003:376) which states that the First Appellant and Sponsor live together in a cohabiting relationship as of 1 September 2020 and that the rules on division of property in the Cohabitees Act shall not be applied to their cohabitation relationship.
19. A copy of the First Appellant’s ‘Residence Card of a Family Member of a Union Citizen’ issued in Estonia on 21 January 2021 with a right of residence to 18 January 2026. A receipt for the application for the same from the Embassy of the Republic of Estonia in Stockholm dated 15 October 2020 and decision (with translation) dated 19 January 2021 to grant a temporary right of residence to the First Appellant on the basis of section 22(1) of the Citizens of the European Union Act.
20. A marriage licence and certificate of marriage for the First Appellant and the Sponsor in respect of their marriage on 8 June 2021.
21. A copy of the Second Appellant’s ‘Residence Card of a Family Member of a Union Citizen’ issued in Estonia on 1 September 2021 with a right of residence to 26 August 2026.
22. A letter confirming the Sponsor’s grant of indefinite leave in the United Kingdom, also known as settled status, dated 24 April 2019.
23. In addition, the Appellants have submitted a copy of the Citizens of the European Union Act from Estonia and a document ‘Rights and Responsibilities of Cohabitees and their home’ from the Ministry of Justice in Sweden. Excerpts of the Respondent’s guidance have also been submitted.
24. The relevant provisions in the Citizens of the European Union Act referred to above and highlighted by the Appellants are as follows:
§ 3. Family member of a citizen of the European Union
(1) For the purposes of this Act, ‘family member of a citizen of the European Union’ (hereinafter, ‘family member’) means a person who is not a citizen of the European Union or a citizen of Estonia and who is:
1) the spouse of a citizen of the European Union (hereinafter, ‘the spouse’)
2) a child under 21 years of age or a dependent adult child of a citizen of the European Union or of his or her spouse (hereinafter, ‘dependent child’),
3) a dependent parent of a citizen of the European Union or of his or her spouse, or
4) a person not covered by clauses1-3 of this subsection who, in the country of origin of the citizen of the European Union, is a dependent of the citizen of the European Union or is a member of his or her household, or who is permanently unable to cope independently due to health reasons, and with respect to whom it is necessary that the citizen of the European Union personally care for him or her.
(2) For the purposes of this Act, ‘dependent’ means a person who resides together with the citizen of the European Union in a shared household and has no personal income.
(3) For the purposes of this Act, ‘member of the household’ means:
1) a person specified in subsection 4 of section 24 of the Official Statistics Act who resides with the citizen of the European Union in a shared household and has an independent income;
2) a person who has a proven permanent and factual registered partnership with a citizen of the European Union.
§ 22. Conditions for a grant of a temporary right of residence
(1) The Police and Border Guard Board grants a temporary right of residence to a family member provided all of the following conditions are fulfilled:
1) the citizen of the European Union with whom the person wishes to reside meets the conditions provided in points 1, 2 or 3 of subjection 20(1) of this Act;
2) the citizen of the European Union with whom the person wishes to reside enjoys the right of residence in Estonia;
3) the applicant for temporary right of residence fulfils the definition of family member as provided in section 3 of this Act;
4) none of the grounds for refusing to grant a temporary right of residence applies to the family member
(2) ...
(3) ...
Submissions
25. Over the course of this appeal, both parties have made detailed written submissions that are all on file and have been taken into account for the purposes of this decision. These covered in particular issues that had been raised as potentially relevant at the error of law hearing, not all of which remained in dispute at the date of hearing, as well as some procedural matters.
26. At the outset of the hearing, I outlined the key issues in the appeals and also referred to the key parts of the relevant legal framework to ensure a broad overview was available, particularly to the Appellants as litigants in person so that they had an opportunity to address all of the relevant points orally, and for both parties to raise any separate matters which had not yet been referred to.
27. At the hearing, on behalf of the Appellants, the Sponsor explained that in Sweden, there is no option for a civil partnership (which was previously only available to same-sex couples until marriage was extended to include them) so the only option for couples was between marriage and cohabitation. The Cohabitation Agreement in Sweden offers very similar rights to marriage, including equal rights to the family home.
28. The Cohabitation Agreement for the First Appellant and the Sponsor was accepted by the authorities in Estonia, who also do not have any option of a civil partnership, only marriage. If the First Appellant’s Residence Card had been issued in Estonia before 31 December 2020, she would have been able to use this to travel to the United Kingdom and in principle, it should still follow that in accordance with EU law, documents issued in Estonia should be valid in all other countries.
29. The Sponsor also relied specifically on the Residence Card issued in Estonia as an Article 10 card which should therefore satisfy the required documentary evidence in the United Kingdom of family relationship in accordance with the Respondent’s guidance on required documents.
30. On behalf of the Respondent, Mr Deller agreed with the outline summary I had given of the relevant legal framework and complexity of provisions to be applied. He emphasised the change in the legal framework since the United Kingdom left the EU and in particular that acts done since in other EU countries no longer necessarily have to be followed by the United Kingdom.
31. In relation to the Cohabitation Agreement, the Respondent maintained the position that this was not a recognised civil partnership under the Civil Partnership Act 2004, even if in practical terms it gave similar rights and status to marriage. The First Appellant was neither a spouse nor a civil partner at the specified date and the only other option to meet the requirements of the Immigration Rules was as a durable partner. This option stems from the EU Directive about other family members, on which each Member State had a say in whether such people could reside in their countries. In the United Kingdom, a durable partnership was a relationship akin to marriage or civil partnership where the couple had cohabited for a period of two years; or other significant evidence of a durable partnership. For this case, such a relationship had to be established by 31 December 2020 and continue to be a durable partnership at the date of application.
32. Mr Deller submitted that the First Appellant’s Cohabitation Agreement was dated 1 September 2020, which gave it very little chance of being able to show it was a durable partnership only three months later particularly when the claim was that the relationship started on the same date.
33. Mr Deller confirmed that there was no issue with the Sponsor being a relevant EEA citizen within the definition in Appendix EU-FP as it only required him to have leave under the EUSS at the date of application and did not require continuing residence in the United Kingdom.
34. In relation to the Second Appellant, she is unable to meet the requirements of the rules as she has no direct family link to the Sponsor and could therefore only establish the required relationship through her mother, if she herself was a spouse of civil partner of the Sponsor, which for the reasons already given she is not. There is no longer any option to be a wider extended family member under the EU Settlement Scheme.
35. In relation to the EU Withdrawal Agreement, this was designed essentially to protect the rights of those who had established them as at 31 December 2020 and to succeed on this ground, the Appellants would have to show that the Withdrawal Agreement made substantive provision for them which the Immigration Rules had failed to do. It covers only a limited category of people, which did not include either of the Appellants as the First Appellant is not a spouse, civil partner or durable partner and the Second Appellant is not a direct family member either. Further, although for Appendix EU-FP the Sponsor only had to have leave to remain in the United Kingdom under the EU Settlement Scheme; the Withdrawal Agreement in Article 10(1)(a) required ongoing residence in the host Member State after 31 December 2020 which this Sponsor did not have.
36. Mr Deller submitted that the issue of a Residence Card in Estonia was not relevant or of any assistance to the Appellants because it was issued after 31 December 2020 and unlike the situation before the UK exited the EU; there was no longer any requirement for such documents to be recognised or decisions followed in the United Kingdom.
Findings and reasons
37. There are separate issues of eligibility for each of the Appellants under Appendix EU-FP of the Immigration Rules and under the EU Withdrawal Agreement. I deal first with the First Appellant’s eligibility under both and then the Second Appellant’s eligibility under both as the former is significant for the latter.
38. In relation to the First Appellant, there are potentially three different ways in which she could qualify as the ‘family member of a relevant EEA citizen’, being (i) a spouse of a relevant EEA citizen; (ii) the civil partner of a relevant EEA citizen; or (iii) the durable partner of a relevant EEA citizen. There is no longer any dispute in this appeal that the Sponsor is a relevant EEA citizen as defined, given that he is a Swedish national who was granted settled status under the EU Settlement Scheme in April 2019.
39. At the date of application on 31 May 2021, the First Appellant and the Sponsor were not married (this came later on 8 June 2021, after the date of application and therefore not relevant as the requirements of the rules are to be met at date of application) and therefore the rules can not be met as a spouse. It does not matter whether factually or not the Cohabitation Agreement entered in to on 1 September 2020 has some of the same benefits, rights or responsibilities as marriage; it was self-evidently not a marriage according to the laws of Sweden and can not therefore be recognised as a valid marriage here. In particular, I also note that the document from the Ministry of Justice in Sweden expressly states that the Cohabitees Act applies only to a relationship in which neither of the cohabitees is married or a registered partner; thus specifically distinguishing it from a marriage.
40. The next question is whether the First Appellant and Sponsor were in a civil partnership as at the date of application on 31 May 2021. In accordance with part 2 of Schedule 20 of the Civil Partnership Act 2004, there are no civil partnerships between opposite sex couples in Sweden that are recognised as civil partnerships in the United Kingdom. As such, the First Appellant can not meet the requirements of the rules as a civil partner as in law, she was not in a registered partnership. Again, it does not matter whether factually or not the Cohabitation Agreement entered in to on 1 September 2020 is an alternative to civil partnership or carries similar benefits, rights or responsibilities to a civil partnership; it is simply not one recognised as a valid civil partnership in the United Kingdom. As above, the document from the Ministry of Justice expressly states that the Cohabitees Act applies only to a relationship in which neither of the cohabitees is a registered partner, so it appears that even in Sweden a Cohabitation Agreement is not the same as nor treated as a registered partnership.
41. The final route by which the Appellant could meet the requirements as a ‘family member of a relevant EEA citizen’ is as a durable partner; which would require evidence to show that the partnership was formed and durable before the specified date of 31 December 2020 and that it remained durable at the date of application on 31 May 2021. A durable partner is further defined (as above) by reference to the couple having lived together in a relationship akin to a marriage or civil partnership for at least two years; unless there is other significant evidence of the durable relationship.
42. On the First Appellant’s claim as set out in her application form, her relationship with the Sponsor began on 1 September 2020 and they started cohabiting from that date; having first met in August 2019. She could not therefore meet the first part of the definition for having lived together in a relationship akin to marriage or civil partnership for at least two years as they had not even known each other that long and at most had cohabited for just under four months as at 31 December 2020. The question remains as to whether there is other significant evidence of the durable relationship.
43. The only evidence at all of the relationship is the Cohabitation Agreement from 1 September 2020. According to the Swedish Ministry of Justice document, a cohabitee must live with their partner on a permanent basis; must live together as a couple and must share a household with their partner, including sharing chores and expenses. It is said that the Cohabitees Act makes provision for a joint home and household goods, but not other property and in the present case, the First Appellant and Sponsor expressly agreed that their property would not be subject to the provisions of the Cohabitees Act.
44. There is no further information about the Swedish Cohabitation Agreement, nor has the legislation itself been provided. It is unclear from the brochure submitted as to whether there would be any external involvement, assessment or recognition of whether the First Appellant and Sponsor were cohabiting in accordance with the Cohabitees Act, it seems not beyond their declaration of the same on 1 September 2020 which was certified by a Notary Public in Sweden. There is nothing to suggest that any registration of cohabitees or a Cohabitation Agreement is required, and an agreement seems to be an option if cohabitees wish to keep their financial affairs separate (section on ‘To whom does the Cohabitees Act apply?).
45. Assuming the Cohabitees Act did apply to the First Appellant and the Sponsor, it would be evidence in their favour that they were as of 1 September 2020 living together as a couple on a permanent basis in a shared household. These are requirements similar to those expected by in the definition of durable partner in the Annex to Appendix EU-FP, save for the duration requirement.
46. However, in the absence of any other evidence at all as to their relationship or even their address in Sweden at the time to show they were in fact even living together (only an address in Estonia and one in Russia being given on the application form in May 2021), I do not find the Cohabitation Agreement, which appears to be a self-declaration as to certain matters only (and excluding the application of the Cohabitees Act), to establish on the balance of probabilities that the First Appellant and the Sponsor were in a durable relationship as at the specified date on 31 December 2020 for the purposes of the Immigration Rules. I do not find that Cohabitation Agreement alone constitutes other significant evidence of a durable relationship, particularly when it seems to be dated on the same day as the relationship started (according to the Appellants’ application form) and that even by 31 December 2020, could at best show a very short duration of both the relationship itself and a relatively short period of cohabitation. For these reasons, the First Appellant has not established that she was the durable partner of the Sponsor and can not meet the requirement that she is the family member of a relevant EEA citizen at the specified date of 31 December 2020.
47. The issue in Estonia in January 2021 of a ‘Residence Card of a Family Member of a Union Citizen’ does not affect any of the conclusions above and does not otherwise meet the evidential requirements of showing that the First Appellant is a ‘family member of a relevant EEA citizen’ given that it is not a document which was issued by the authorities in the United Kingdom and is not therefore a ‘relevant document’ as defined in the Annex to Appendix EU-FP as one issued under the Immigration (European Economic Area) Regulations 2016. The Appellants’ reliance on the Respondent’s guidance referring to an EEA Residence Card is misplaced as this does not include any such documents issued otherwise than under the 2016 Regulations just referred to.
48. Further, although the Residence Card issued in Estonia would, prior to 31 December 2020 have been recognised under Article 10 of Directive 2004/38/EC and in accordance with Regulation 11 of the Immigration (European Economic Area) Regulations 2016 would have given the First Appellant the right of admission to the United Kingdom as a family member of an EEA national (subject to other conditions); it no longer had that effect by the time it was issued or by the time of the Appellants’ applications following the United Kingdom’s exit from the European Union on 31 December 2020 when these Regulations were revoked (subject to savings which do not assist the First Appellant in these appeals). It is not, for the purposes of this appeal, something which is recognised in the United Kingdom or accepted as evidence of a particular relationship before or after 31 December 2020.
49. In addition, it is not entirely clear on what basis the Residence Card was issued, the letter available regarding this only states that this was on the basis of section 22(1) of the Citizens of the European Union Act, which covers a number of different options as to how a person can qualify as a family member under section 3 (which includes as a spouse, as a dependant and as a member of a household) without specifying which applied in respect of the First Appellant. It is not therefore capable in any event of providing supporting evidence of one of the required relationships to establish that the First Appellant was, at the specified date (which pre-dated the issue of the Residence Card), a family member of a relevant EEA citizen.
50. Overall, in relation to the First Appellant, she has not established that she meets the requirements of Appendix EU-FP for the issue of a family permit as she is not a family member of a relevant EEA citizen as defined in the Immigration Rules. Her appeal is therefore dismissed under the Immigration Rules relating to the EU Settlement Scheme.
51. The second ground of appeal for the First Appellant is whether the Respondent’s refusal is in breach of the EU Withdrawal Agreement. No specific provisions have been relied upon within the Withdrawal Agreement to give rise to any substantive breach, but in any event, I find that nothing therein could benefit the First Appellant as she is not within the personal scope of it for the following reasons. First, the gateway to being a family member to which the Withdrawal Agreement applies is the relationship to a Union citizen in Article 10(1)(a) who has exercised their right to reside in the United Kingdom in accordance with Union law before the end of the transition period and continues to reside there thereafter. On the basis that the Sponsor is a Swedish citizen who was granted settled status in the United Kingdom in April 2019, I find that he is a Union citizen that has exercised his right to reside here before the end of the transition period on 31 December 2020. However, there is no evidence before me to suggest that the Sponsor has continued to reside in the United Kingdom after this date. To the contrary, the Appellants’ claim was that the Sponsor was living in Sweden at least on 1 September 2020 and in Estonia at least at the date of application in May 2021 and back in Sweden by the date of hearing. Whilst the Appellants have not given any specific evidence as to the Sponsor’s residence on any other particular dates, there is simply no evidence at all to suggest he has continued to reside in the United Kingdom since 31 December 2020. If the Sponsor does not fall within the personal scope of the Withdrawal Agreement, nor can any of his family members.
52. Secondly, even if the Sponsor did fall within Article 10(1)(a) of the Withdrawal Agreement, the First Appellant can not meet the requirement in Article 10(1)(e)(ii) or 10(4) as either a person directly related to the Sponsor under Article 2(2) of Directive 2004/38/EC or as a durable partner. For the reasons already given above, the First Applicant was not a spouse, civil partner or durable partner of the Sponsor by 31 December 2020.
53. For these reasons, the First Appellant is not within the personal scope of the EU Withdrawal Agreement such that none of the substantive provisions therein can be of benefit to her and the Respondent’s decision is not therefore in breach of the Withdrawal Agreement. Her appeal is therefore also dismissed on that ground.
54. In relation to the Second Appellant, the situation is somewhat more straightforward as she can only meet the requirements of Appendix EU-FP to the Immigration Rules as a child of a relevant EEA citizen or the child of the spouse or civil partner of a relevant EEA citizen. The Second Appellant is not the biological child or direct descendent of the Sponsor; so she can not meet the first option and as above, as her mother was not the spouse or civil partner of the Sponsor at the specified date or date of application, she can not meet the second option either. There is no alternative suggestion or evidence to support any other way in which the Second Appellant could meet the requirements in Appendix EU-FP, such as a dependent. For these reasons, her appeal is dismissed under the EU Settlement Scheme as set out in the Immigration Rules.
55. The final issue is whether the Second Appellant falls within the personal scope of the EU Withdrawal Agreement and could therefore benefit from any substantive provisions therein. For the same first reason as given for the First Appellant, she can not as the Sponsor does not fall within Article 10(1)(a) of the Withdrawal Agreement as he has not continued to reside in the United Kingdom after 31 December 2020. Further and in any event, the Second Appellant does not fall within Article 2(2) of Directive 2004/38/EC as she is not directly related to the Sponsor and therefore does not fall within Article 10(1)(e) of Withdrawal Agreement. For these reasons, the Second Appellant’s appeal is also dismissed under the EU Withdrawal Agreement.
Notice of Decision
The making of the decision of the First-tier Tribunal did involve the making of a material error of law, for the reasons set out in the decision annexed. As such it was necessary to set aside the decision.
The appeals are remade as follows:
The appeals are dismissed under the EU Settlement Scheme Rules as set out in Appendix EU-FP to the Immigration Rules
The appeals are dismissed under the EU Withdrawal Agreement


G Jackson

Judge of the Upper Tribunal
Immigration and Asylum Chamber

3rd June 2025



IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2022-005656
First-tier Tribunal No: EA/13585/2021
Case No: UI-2022-005657

First-tier Tribunal No: EA/16195/2021

THE IMMIGRATION ACTS

Decision & Reasons Issued:

…………………………………

Before

UPPER TRIBUNAL JUDGE JACKSON

Between

GALINA IGNATEVA
SOFIA IGNATEVA

(NO ANONYMITY ORDERS MADE)
Appellants
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr G Bhatia, Sponsor
For the Respondent: Ms S Cunha, Senior Home Office Presenting Officer

Heard at Field House on 11 November 2024


DECISION AND REASONS
1. This has been a hybrid hearing which has not been objected to by the parties. Myself and Ms Cunha appeared in person at Field House and the Sponsor, Mr Bhatia, appeared remotely from a location in Italy by video, using Teams. There were no technical difficulties for the hearing itself and the papers were all available electronically.
2. The Appellants appeal with permission against the decision of First-tier Tribunal Judge Hosie promulgated on 23 August 2022, in which the Appellants’ appeals against the decisions to refuse their applications for EU Family Permits dated 15 November and 28 August 2021 respectively, were dismissed.
3. The Appellants are nationals of the Russian Federation, born on 13 July 1981 and 29 March 2001 respectively, they are mother and daughter. The Appellants made an application on 16 June 2021 under the EU Settlement Scheme (the “EUSS”) as set out in Appendix EU-FP to the Immigration Rules for a family permit on the basis of their relationship to Gireesh Bhatia (the “Sponsor”), a Swedish national and the First Appellant’s husband.
4. The Respondent refused the applications on the basis that she was not satisfied that the Appellants were the family members of a relevant EEA citizen as defined.
5. Judge Hosie dismissed the appeal in a decision promulgated on 23 August 2022 on all grounds. The decision set out the relevant requirements in Appendix EU-FP, in particular paragraphs FP3 and FP6; together with definitions from Annex 1 and identified the issues in the appeal as (i) whether the Appellants are related as claimed as family members as defined; and (ii) whether the Sponsor is a relevant EEA citizen). On the latter, it was found that even if the Sponsor was accepted to be a Swedish national (a matter not clearly in dispute), he would not be a relevant EEA citizen because ‘they’ do not live in the United Kingdom.
6. On the first issue, the First-tier Tribunal found that the cohabitation agreement relied upon did not constitute evidence of the permitted types of relationships under the EU Exit Regulations as it is not a civil partnership and the couple were not married. Further, the agreement was dated 1 September 2021 and therefore outside of the qualifying period as the relationship started after the relevant date of 31 December 2020. As such, the evidence also did not support a durable relationship.
The appeal
7. The Appellants appeals are put on slightly different grounds in different documents. In their appeal form, the three grounds were set out as (i) the First-tier Tribunal erred in its interpretation of EU law rights for Non-EU Family of EU Citizens and failed to confirm to Directive 2004/38/EC; (ii) the First-tier Tribunal erred in not accepting family documents valid under Estonian law; and (iii) the First-tier Tribunal erred in using an incorrect date for the start of the relationship and on legalised documents. In a separate letter, the three grounds set out were as follows. First, the First-tier Tribunal have erred in law in finding that the Appellants are not ‘Family Member’s within the meaning of Appendix EU-FP of the Immigration Rules. Secondly, the First-tier Tribunal erred in fact and therefore in law in recording the relationship as commencing in September 2021 when it was in September 2020. Thirdly, the First-tier Tribunal erred in law in refusing to grant permission to appeal on the basis that the application under the EUSS was not made in time, when it was in fact before the deadline of 1 July 2021 (extended from the specified date of 31 December 2020). The Appellants also assert as part of their grounds of appeal that as they had a cohabitation agreement from 1 September 2020 and had applied for a right of residence in Estonia on 15 October 2020 (before the end of the transition period) and had married on 8 June 2021; they fell within the Immigration (European Economic Area) Regulations 2016 and thus were ‘Family Members’ for the purposes of their applications.
8. There is no dispute in these appeals that the First-tier Tribunal erred in fact as to the relevant dates of key events as follows. First, the cohabitation agreement was registered on 1 September 2020, not 2021 as recorded in the decision; this is material as one falls before the specified date and one after. Secondly, the application under the EUSS was made on 16 June 2021 and not 2 August 2021 as recorded; this is material as it was made before and not after the deadline for such applications.
Findings and reasons
56. As agreed by both parties, the First-tier Tribunal materially erred in law with a mistake of fact as to the date of the cohabitation agreement, placing it a year later than it was, on its face, dated. This error of fact led to the conclusion that the relationship had not started before the specified date and therefore whether a durable partnership had been established was not considered at all. There was also no express consideration as to the nature of the cohabitation agreement, nor reasons as to why this was not evidence of a permitted type of relationship, which is also likely to have been due to the same mistake - the incorrect later date would have precluded reliance on this document in any event. In effect the factual error precluded the First-tier Tribunal from undertaking the required examination of whether the Appellants met the requirements of Appendix EU(FP) to the Immigration Rules. It is also notable that the original grounds of appeal raised matters in relation to the EU Withdrawal Agreement which were not addressed at all in the First-tier Tribunal decision either.
57. Although not directly challenged in the grounds of appeal, I also find an error of law in relation to the finding that the Sponsor is not a relevant EEA citizen. That was not relied upon in the respective decision letters and, in an appeal determined on the papers, nothing to suggest it was dispute at the date of hearing either. There are no reasons for the conclusion given beyond ‘they’ (by which it is not clear if it means the Sponsor or the Appellants; or all three) do not live in the UK. Given that these were applications for Entry Clearance, the relevance of not living in the United Kingdom by any of the parties is not understood and does not align with the requirements in Appendix EU(FP) given that applications are to join or accompany a relevant EEA citizen. It has not subsequently been suggested by the Respondent that the appeals should in any event fail for this reason and I do not find that they should.
58. In all, primarily stemming from the mistake of fact as to the date on the cohabitation agreement but probably also not assisted by this appeal being decided on the papers without the assistance of any oral argument from any party; the First-tier Tribunal have failed to make findings on the relevant issues in these appeals. The decisions must therefore be set aside and no findings can be preserved.
59. At the hearing before the Upper Tribunal, the issues which will need to be determined were canvassed, together with any practicalities for a resumed hearing in the Upper Tribunal given the residence of the relevant parties has changed and they are all living abroad and not all in the same country. To deal with the latter first, as at the date of this hearing, the family were no longer living in Estonia. The First Appellant and Sponsor were living in Sweden, albeit the First Appellant was temporarily in Russia caring for her mother and the Sponsor frequently travels to other countries including Italy. The Second Appellant lives in Russia.
60. It is anticipated that by the time of a further hearing, at least two of the three to be involved would be in Sweden, the other in Russia. In accordance with the guidance in Agbabiaka (evidence from abroad; Nare guidance) [2021] UKUT 00286 (IAC) (which was sent to the Appellants prior to this hearing further to the request for a video link from abroad); the Appellants are required to notify the Upper Tribunal as to which country they will be in at the date of the next hearing (when listed) and to satisfy the Upper Tribunal that they have the required permission to give evidence or participate from that country or countries.
61. In terms of the issues, the two grounds of appeal open to the Appellants are, (i) whether the Respondent’s decisions were contrary to the EUSS, as set out in Appendix EU-FP; and (ii) whether the Respondent’s decisions were contrary to the EU Withdrawal Agreement.
62. In respect of the First Appellant and the requirements of Appendix EU-FP, the questions will be whether she is the family member of a relevant EEA citizen, as defined in Annex 1. This may be on the basis of marriage or a registered partnership; or in the alternative, on the basis of a durable partnership. The former was discussed at the hearing and I indicated a preliminary view that as the parties were not married before the specified date, the First Appellant could not succeed on this ground and the cohabitation agreement from Sweden was not a registered partnership as it was not listed as required in the Civil Partnership Act 2004, such that she was not a registered partner either. However, the parties are at liberty to make full submissions on these points as advised.
63. In respect of the Second Appellant and the requirements of Appendix EU-FP, the same question as to whether she is a family member of a relevant EEA citizen applies; albeit under different provisions. Given the passage of time, there may also be an issue of whether the Second Appellant meets the definition of ‘child’ set out therein as this is restricted to a direct descendent of a relevant EEA citizen, or of their spouse or civil partner (on which the findings in relation to the First Appellant will be relevant) who is under the age of 21 or over the age of 21 and dependent on the same person. The Second Appellant was under the age of 21 at the date of application, but now over the age of 21 and therefore dependency is likely to now be in issue. The Respondent will need to confirm her position in relation to this.
64. Unless the Respondent specifies that this is disputed, it is not anticipated that there is any issue as to whether the Sponsor is a relevant EEA citizen for the purposes of either Appellants’ appeal. It is however noted that the Sponsor was granted Indefinite Leave to Remain under the EUSS in 2019 but does not appear to have resided in the United Kingdom since some time in 2020, such that the Respondent will need to identify if there are any issues arising from this.
65. As to the second available ground of appeal in relation to the EU Withdrawal Agreement, some arguments have been put on behalf of the Appellants as to the applicability of this to the Appellants given that they were both issued with EEA Residence Cards in Estonia under Article 10 of Directive 2004/38/EC. Fuller submissions on this and the Respondent’s position will be required to address issues of personal scope and what substantive provisions are relied upon in relation to the EU Withdrawal Agreement.
66. Directions are set out below for the relisting of this hearing and what is needed from both parties to address the outstanding issues and the practicalities for the hearing. I consider it would be appropriate and practical for the Respondent to first set out her position in relation to the matters raised above; to which the Appellants can respond by way of any further evidence and a skeleton argument; with a similar opportunity for the Respondent to file a skeleton argument and any further evidence in response. A composite bundle will also be required for the next hearing. Given the complexity of the issues raised, I would strongly recommend the Appellants seek independent legal advice prior to their submissions and the next hearing.
Notice of Decision
The making of the decision of the First-tier Tribunal did involve the making of a material error of law. As such it is necessary to set aside the decision.
I set aside the decision of the First-tier Tribunal.
Listing Directions
1. The re-making of these appeals is to be re-listed on the first available date from 7 April 2025 before UTJ Jackson, with a time estimate of 3 hours. The hearing will be a hybrid hearing to allow the Appellants and Sponsor to appear remotely (subject to (2) below) and a Russian interpreter is required.
2. The Appellants to confirm no later than 14 days before the re-listed hearing from which country they intend to join a remote video link and that the requirements in Agbabiaka have been satisfied as to the required permissions to participate in the hearing and/or give oral evidence. If the required permissions have not been given, the Appellants are to set out any proposals for alternative means of giving evidence or apply for an adjournment if more time is needed for the required permissions.
3. The Respondent to file and serve a statement as to her position in relation to the matters referred to above (specifically, which provisions of Appendix EU-FP are in issue and why and the applicability or otherwise of the EU Withdrawal Agreement in these appeals) no later than 21 days after the date on which these directions are sent.
4. The Appellants to file and serve no later than 28 days after receipt of the Respondent’s position in (3):
(i) a skeleton argument setting out their position in one composite document in relation to all issues in dispute under both Appendix EU(FP) and the EU Withdrawal Agreement;
(ii) any further evidence upon which they wish to rely. For any person intending to give oral evidence in support of these appeals; this must include a written statement (or updated written statement) accompanied by a statement and truth and be signed and dated by him/her to stand as evidence in chief.
5. The Respondent to file and serve, no later than 21 days after receipt of the Appellants’ documents in (4):
(i) a skeleton argument dealing with all issues in dispute;
(ii) any further evidence upon which she wishes to rely;
(iii) a composite appeal bundle in accordance with the current standard directions.


G Jackson

Judge of the Upper Tribunal
Immigration and Asylum Chamber

17th January 2025