Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM
CHAMBER Case No: UI-2022-006189
EA/04241/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 3rd of June 2026

Before

UPPER TRIBUNAL JUDGE MANDALIA

Between

Have Rexhaj
(NO ANONYMITY DIRECTION MADE)
Appellant
and

Secretary of State for the Home Department
Respondent
Order and Directions
UPPER TRIBUNAL JUDGE MANDALIA, The Principal Resident Judge
UPON the Court of Appeal having allowed the appeal by the Secretary of State against the decision of Upper Tribunal Judge Smith and Deputy Upper Tribunal Judge Skinner issued on 24 April 2023 and remitting the appeal to the Upper Tribunal in accordance with the judgement of the Court of Appeal in SSHD v Have Rexhaj [2024] EWCA Civ 784.
AND UPON THE TRIBUNAL NOTING that at paragraph [70] of the judgement, Underhill LJ records that the SSHD now accepts that decision of the First-tier Tribunal (“FtT”) was procedurally unfair.
AND UPON THE TRIBUNAL having issued directions to the parties dated 19 July 2025 requiring the parties to file and serve a short position statement setting out any submissions that they wish to make as to the disposal of the appeal before the Upper Tribunal, and in particular, whether the decision should be remade in the Tribunal or remitted to the FtT.
AND UPON THE TRIBUNAL having considered the Position Statement filed and served on behalf of the SSHD dated 26 June 2025.
AND UPON the Tribunal noting that no position statement has been filed by or on behalf of Have Rexhaj in response to the directions issued by the Upper Tribunal.

IT IS DIRECTED THAT:
1. The appeal is remitted to the FtT for hearing afresh.
2. It will be for the FtT to make further directions for the hearing of the appeal.
Reasons
1. As set out in the decision of the Court of Appeal (SSHD v Have Rexhaj [2024] EWCA Civ 784):
a. Mrs Rexhaj (“hereafter referred to as “the appellant”) appealed to the First-tier Tribunal under regulation 8 of the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 (“the 2020 Regulations”). Her primary case was that she was not, on the true construction of the relevant provisions of Appendix EU, required to show that she was dependent on Ms Prednicea (“the issue of law”); but she also contended that if there was such a requirement she had satisfied it (“the factual issue”).
b. The appellant’s appeal was dismissed by the First-tier Tribunal (“the FtT”). Mrs Rexhaj appealed to the Upper Tribunal.
c. By a decision dated 24 April 2023 the Tribunal (UTJ Stephen Smith and DUTJ Skinner) allowed the appellant’s appeal on the issue of law. It also set aside the FtTJ’s findings of fact on the factual issue, on the basis that that was not a relevant inquiry given its conclusion on the legal issue.
d. The SSHD was granted permission to appeal to the Court of Appeal. The Court of Appeal allowed the SSHD’ appeal against the Upper Tribunal’s decision. The Court of Appeal determined the issue of law in favour of the SSHD. The SSHD accepted that the FtT’s decision as to the factual issues (i.e. that the requirement that she was dependent on Ms Prednicea) was procedurally unfair.
2. The Court of Appeal said that in light of the concession made by the SSHD regarding the appellant’s challenge to the fairness of the decision of the FtT on the factual issue, it will be for the Upper Tribunal to decide whether itself to hear evidence and remake the decision or to remit the case to the First-tier Tribunal.
3. The parties have been given an opportunity to make representations as to the disposal of the appeal before the Upper Tribunal, and in particular, whether the decision should be remade in the Tribunal or remitted to the FtT. The SSHD takes a neutral stance on this question. The appellant has not filed a position statement.
4. The Tribunal can re-make the decision in relation to the appellants’ appeal pursuant to section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007. By virtue of section 12(4) of that Act, the Tribunal may make any decision which the FtT could make if it were re-making the decision and may make such findings of fact as it considers appropriate.
5. I am conscious of the Court of Appeal’s decision in AEB v SSHD [2022] EWCA Civ 1512, Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC) and §7.2 of the Senior President’s Practice Statements. Sub-paragraph (a) deals with where the effect of the error has been to deprive a party before the Tribunal of a fair hearing or other opportunity for that party's case to be put to and considered by the FtT, whereas sub-paragraph (b) directs me to consider whether I am satisfied that the nature or extent of any judicial fact finding which is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective in rule 2, it is appropriate to remit the case to the First-tier Tribunal.
6. The SSHD accepts that the FtT’s decision as to the factual issues (i.e. that the requirement that she was dependent on Ms Prednicea) was procedurally unfair. I accept the appellant was deprived of a fair opportunity to have all the evidence she relied upon considered by the FtT, and the appropriate course, in fairness to the appellant, is for the appeal to be remitted for rehearing before the FtT.

V. Mandalia
Upper Tribunal Judge Mandalia

Principal Resident Judge of the Upper Tribunal
Immigration and Asylum Chamber

18 May 2026