Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2023-000553

First-tier Tribunal No: EA/06009/2021

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 26th of June 2025

Before

UPPER TRIBUNAL JUDGE RUDDICK
DEPUTY UPPER TRIBUNAL JUDGE BAGRAL

Between

ENTRY CLEARANCE OFFICER
Appellant
and

SAMAVIA REHANA RAFIQ
(NO ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Ms. L. Clewley, Senior Home Office Presenting Officer
For the Respondent: Mr. S. Karim, Counsel, instructed by Whitefield Solicitors Ltd

Heard at Field House on 12 May 2025

DECISION AND REASONS
Introduction
1. This is an appeal brought by the Entry Clearance Officer against the decision of First-tier Tribunal Judge T Thorne (the Judge) promulgated on 24 January 2023. To avoid confusion, although it is the Entry Clearance Officer who brings this appeal we will refer to the parties as they were in the First-tier Tribunal where Ms Rafiq was the appellant and the Entry Clearance Officer the respondent.
Background
2. The appellant is a national of Pakistan and is presently aged 36. Her sponsor is her brother, Mr. Mirza Rafiq, a citizen of Germany who resides in the United Kingdom. The appellant made the application that has led to this appeal on 30 November 2020. There is dispute between the parties as to the substance of the application. The respondent states that it was an application for a family permit under the European Union Settlement Scheme (‘EUSS’). The appellant contends that there was a mistake in the process of the application, and she sought to apply for an EEA family permit under the Immigration (European Economic Area) Regulations 2016 (‘the 2016 Regulations’).
3. The generated application form in the bundle details the application as having been made for a ‘European Family Permit’ and the application category identified as ‘an EU Settlement Scheme Family Permit’. In an accompanying letter from the appellant dated 29 November 2020 she states that she is “…applying for a family permit as a family member of an EEA national” and she refers to the sponsor “…exercising his treaty rights in the UK…”. In support of her application the appellant provided identity documents relating to herself and her sponsor, money remittances and evidence of her relationship to the sponsor and the sponsor’s employment in the United Kingdom. Treating the application as one made for an EUSS family permit, the respondent refused it by means of a decision dated 20 February 2021. In her brief reasons the respondent observed, inter alia:
‘Your application has been refused because you have not provided sufficient evidence to prove that you are a ‘family member’ - (a spouse, civil partner, child, grandchild, great-grandchild under 21; dependent child, grandchild, great-grandchild over 21; or dependent parent, grandparent, great-grandparent) - of a relevant EEA or Swiss citizen or of their spouse or civil partner as claimed.
As your relationship to the sponsor does not come within the definition of ‘family member of a relevant EEA citizen’ as stated in Appendix EU (Family Permit) to the Immigration Rules, you do not meet the eligibility requirements.’
4. Having considered the matter under the EUSS, there was no requirement for the respondent to consider the issue of dependency.
The Appeal to the First-tier Tribunal
5. The appellant appealed against the respondent’s decision and her appeal was heard by the Judge on 18 January 2023. The appellant was represented by counsel. The respondent was unrepresented. The appellant, who resides in Pakistan, relied upon a witness statement. The sponsor attended and gave evidence. He explained that he had made the application on behalf of the appellant without legal assistance. His intention was to make an application under the 2016 Regulations, as clearly conveyed by attendant documents. He had completed the on-line form incorrectly and he relied upon a genuine mistake having been made. The sponsor explained in his written testimony and oral evidence the nature and extent of the appellant’s dependency upon him.
6. At that hearing it was argued on behalf of the appellant that although the application had been made using the form for an application under the EUSS, it was in fact an application for a residence card as the extended family member of the sponsor pursuant to the 2016 Regulations. This, it was argued, ought to have been apparent to the Entry Clearance Officer from the application itself which expressly referred to the appellant’s financial dependency on the sponsor, the supporting documents and the appellant’s covering letter. It was argued, distinguishing Batool and others (other family members: EU exit) [2022] UKUT 00219 (IAC) and in reliance on the unreported decision in Yorke and Cradock v Entry Clearance Officer, UI-2022-002263 and UI-2022-002250, the fact the application had not been considered in accordance with the 2016 Regulations meant that the refusal of the application breached a right the appellant had under the Withdrawal Agreement and the appeal should be allowed on that basis.
7. The Judge found, inter alia:
’14. Having taken into account all the evidence, I am satisfied on the balance of probabilities that S [the sponsor] made a genuine mistake in submitting the application that is the subject matter of the appeal and in reality, intended the matter to be considered under the EEA Regulations and not the EUSS regime. The evidence established that there is one online application form for both types of applications and that the only entry on the application form which determines the ultimate ‘route’ which it takes (under the 2016 Regulations or Appendix EU (FP)) is selected from a drop-down menu. I am satisfied that in the case of A [the appellant] the wrong tab on the drop down menu was selected by someone (S) who was not legally represented.
15. In considering the consequences of this error I have taken into account the case of Batool [2022] UKUT 00219 (IAC). I have also had regard to the unreported case of Yorke & Cradock UI-2022-002263 EA/04027/2021 UI-2022-002250 EA/04026/2021. This latter case is obviously not binding on me. However (even though it is unreported) I consider it is material to my deliberations and I am assisted by the logic of its analysis. In particular I conclude that the choice made in the form is not determinative in all cases. This is especially the case where the applicant (as is the case before me) was not legally represented. I answer the rhetorical question posed by the UT in the same way: “Could it be right, in those circumstances, for the respondent to fold her arms and to treat the application as being made, and only made, under the Immigration Rules, purely because of the choice made in the drop-down menu? We come to the clear conclusion that it would not be.” I adopt the same approach as the UT that “The respondent obviously has a discretion to consider the application under both routes and is required to exercise that discretion with a modicum of intelligence, common sense and humanity, as Sullivan J said in R (Forrester) v SSHD [2008] EWHC 2307 (Admin).
‘16. After considering all of the evidence I conclude that it ought to have been apparent to the ECO that A wished for her application to be considered as one of facilitation under the EEA Regulations. Adopting the reasoning of the UT in Yorke I therefore determine that appellant’s application under the 2016 Regulations remains outstanding before the respondent (sic).’
(our emphasis)
8. The Judge concluded:
‘17. For the avoidance of doubt, I should also record my findings that I am satisfied on the balance of probabilities that at all material times A was dependent upon S. I found S to be an honest and reliable witness. […].
18. In addition, I find it entirely plausible that A is unemployed and was unable to find lucrative work. She is a lone woman in Pakistan. After considering all the evidence in the round I am satisfied that S’s financial support is and was A’s only source of income and is and was used to meet A’s essential living needs. S’s evidence about this was internally consistent and inherently plausible.
19. In addition, I am satisfied that S has sufficient income to be able to have supported A financially as claimed. S’s evidence about this was internally consistent, inherently plausible and was supported by the available documentary evidence, in particular S’s bank statements and employment documents.’
9. The Judge allowed the appeal.
The Appeal to the Upper Tribunal
10. The respondent sought permission to appeal to this Tribunal against the Judge’s decision on the sole ground that the Judge made a material misdirection in law in:
(i) deciding the appeal with reference to the 2016 Regulations rather than under the Immigration (Citizens Rights Appeals((EU Exit) Regulations 2020.
(ii) having found that the application was one made under the 2016 Regulations, the Judge treated the appeal as one brought against a refusal under the 2016 Regulations when it was an appeal against a decision to refuse an EUSS application.
11. Permission to appeal was granted by First-tier Tribunal Judge Curtis. Judge Curtis observed inter alia:
‘3. The Judge’s decision was promulgated before the Upper Tribunal promulgated, on 10 February 2023, its decision cited as Siddiqa (other family members: EU exit) Bangladesh [2023] UKUT 00047 (IAC).
4. Having considered the Visa Application Form in the Respondent’s substantive bundle, it bears striking similarities to that set out in [3] in Siddiqa. That is, the application form submitted by the Appellant, or on her behalf, indicated that the “type of visa/application” sought was a “European Family Permit” and in the box requesting the applicant to “select the category you are applying for” the following had been selected, “close family member of an EEA or Swiss national with a UK immigration status under the EU Settlement Scheme. I confirm I am applying for an EU Settlement Scheme Family Permit”. Distinct from the facts in the Siddiqa case, it does not appear that the Appellant, or her sponsor, had ever sent a letter to the Respondent indicating, or explaining, what type of permit was being sought.’

The error of law hearing
12. The matter comes before us to determine whether the decision contains an error of law and, if it is so concluded, to either re-make the decision or remit the appeal to the First-tier Tribunal to do so.
13. A consolidated bundle was filed by the appellant’s representatives containing, inter alia, the core documents in the appeal, including the parties’ respective bundles before the First-tier Tribunal.
14. The hearing was attended by representatives for both parties as above. Both representatives made submissions and the conclusions below reflect those arguments and submissions where necessary.
15. At the end of the hearing, we reserved our decision.
Legal Framework
16. Prior to 31 December 2020 there were two schemes available through which an extended family member of an EU national could apply for the right to reside in the United Kingdom: (i) an application for their residence to be facilitated via the 2016 Regulations; and (ii) an application for leave to remain via the EUSS. These two schemes were analysed by the Court of Appeal in Siddiqa v Entry Clearance Officer [2024] EWCA Civ 248.
17. We distil the following principles from that analysis that are relevant to this appeal:
(i) An application under the EUSS made by the extended family member whose residence in the United Kingdom was not already being facilitated did not bring the applicant within the scope of the Withdrawal Agreement. An extended family member who did not already have a residence card had to apply under the 2016 Regulations for facilitation before the end of the transition period to come within the scope of the Withdrawal Agreement (see [63] – [65]).
(ii) An application that has purportedly been made under the EUSS can, if it is found as a matter of fact to be an application made under the 2016 Regulations, be treated as such an application - (see [67]) – (we observe that was what happened in Yorke et al where an application made in the form of one under the EUSS was found as a fact to be an application for facilitation of residence under the 2016 Regulations and treated as such, notwithstanding its form).
(iii) In a case where the application was made before the end of the transition period (i.e. by 30 December 2020), it has the effect of bringing the applicant within the definition in Article 10(3) of the Withdrawal Agreement at least until the application is resolved - (see [65]).
(iv) Where such an application is refused by the respondent without it being considered under the 2016 Regulations, the application remains outstanding and the respondent’s refusal under the EUSS involves a breach of a right the applicant has under the Withdrawal Agreement. In these circumstances an appeal against the refusal should be allowed by virtue of regulation 8 of the Immigration (Citizen Rights Appeals) (EU Exit) Regulations 2020 (“the 2020 Regulations”).
Discussion
18. We have considered the Judge’s decision, the composite bundle, the grounds of appeal, and the submissions made at the hearing, before coming to a decision in this appeal.
19. We remind ourselves of the following principles. The Supreme Court in HA (Iraq) v SSHD [2022] UKSC 22 reiterated that judicial caution and restraint is required when considering whether to set aside a decision of a specialist tribunal. In particular, judges of the specialist tribunal are best placed to make factual findings. Appellate courts should not rush to find the tribunal misdirected itself simply because they might have reached a different conclusion on the facts or expressed themselves differently: see AH (Sudan) v SSHD [2007] UKHL 49 and KM v SSHD [2021] EWCA Civ 693. We are again reminded of these principles in many subsequent authorities including Volpi & Anor v Volpi [2022] EWCA Civ 464, at [2-4], Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201, at [26], Yalcin v SSHD [2024] EWCA Civ 74, at [50-51], and Gadinala v SSHD [2024] EWCA Civ 1410, at [46-47].
20. Having applied the above principles and after careful consideration of the representatives’ submissions we find the judge’s decision is not vitiated by a material error of law for the following reasons.
21. The fundamental question the Judge was required to determine in this appeal was what type of application was made on 30 November 2020. That was a fact-finding exercise for the Judge. The Judge concluded that although the application had been made using the form for an application under the EUSS, it was in fact an application for a residence card as the extended family member pursuant to the 2016 Regulations. The Judge reached that conclusion on a ‘whole sea of evidence’ including the honest testimony of the sponsor who he found had made a genuine mistake and the documentary evidence (at [14] and [17]). It is common ground (contrary to the observation made by Judge Curtis in his grant of permission), that in the appellant’s case the documentary evidence included a covering letter dated 29 November 2020 sent to the Entry Clearance Officer on application, which Mr Karim drew to our attention. As we observed earlier, appellant stated that she was applying ‘for a family permit as a family member of an EEA national’ and she made reference to the sponsor ‘…currently exercising treaty rights in the UK by working.’ It is clear from the terminology used that the appellant was seeking to establish her dependency upon her sponsor, consistent with an application under the 2016 Regulations as an extended family member. The sponsor’s exercise of treaty rights would have been irrelevant to an application made under the EUSS, because EUSS status depended on residence alone.
22. Ms Clewley in amplifying the grounds first submitted that it was not open to the Judge to find that the appellant made an application under the 2016 Regulations because it was not for the Entry Clearance Officer "to chase shadows" to see if the applicant intended to make a different application (see: Siddiqa at [66]). In the circumstances Ms Clewley submitted that the Judge ought to have applied Batool (headnote 2) and, in turn, was not ‘entitled’ to rely on the decision in Yorke et al. The fundamental difficulty we find with these submissions is that the lawfulness of the Judge’s conclusion at [16], which we emphasised above, namely, that it ought to have been apparent to the Entry Clearance Officer that the appellant was making an application under the 2016 Regulations is not challenged in the grounds. It is not open to Ms Clewley to now argue the contrary.
23. As we indicated earlier the answer to the question of what type of application was made by the appellant was a fact-finding exercise for the Judge. According to the Judge’s factual findings, this was not a case of the Entry Clearance Officer chasing shadows. The Judge expressly found that it ought to have been apparent to the Entry Clearance Officer that the appellant intended to make an application for facilitation under the 2016 Regulations. Whilst Ms Clewley’s submissions focused on the rationale in Siddiqa, we agree with Mr Karim that the facts in that case are not analogous to this appellant’s case, in that, in Siddiqa there was no reference to the 2016 Regulations or to the exercise of treaty rights in the application she made for a Family Permit under the EUSS. We are in no doubt that the key factual findings that the appellant and sponsor intended to make an application under the 2016 Regulations and that this “ought to have been apparent” to the ECO was open to the Judge on the evidence. We bear in mind in reaching that conclusion both the principles of appellate restraint outlined above and the fact that the Judge had the benefit of hearing evidence from the sponsor.
24. Having reached that position on the facts, the guidance in Batool (headnote 2) had no purchase. We note the Judge did not, as we do, have the benefit of the learning from the Court of Appeal’s judgment in Siddiqa. This judgement was handed down after the Judge’s decision was promulgated as was the Upper Tribunal’s reported decision in Siddiqa (other family members, EU exit) [2023] UKUT 00047 (IAC). However, we find that the Judge’s decision still stands because he did make a clear and sustainable finding of fact that the application had been made under the 2016 Regulations and that this should have been apparent to the ECO. See Siddiqa at [67].
25. The core of Ms Clewley’s submissions in this appeal, which is the essence of the grounds, is that the Entry Clearance Officer made a decision under the EUSS and the appellant’s grounds of appeal were limited to those set out in the 2020 Regulations under which the appeal was brought. She submitted the Judge was wrong in law to conclude that he was dealing with an appeal under the 2016 Regulations since no decision had been made under those Regulations which could be appealed under regulation 36. It was not a ground of appeal against a decision under the EUSS that the appellant was entitled to be considered as an “extended family member” under the 2016 Regulations.
26. We are not persuaded on a holistic reading of the decision that that was the approach the Judge took in this appeal and thereby erred in law. Whilst we accept the Judge could have expressed himself in clearer terms other than to simply state ‘I allow the appeal’, in our judgement, the basis on which the Judge allowed the appeal is apparent from his finding at [16], namely, that the ‘…appellant’s application under the 2016 Regulations remains outstanding before the respondent’. The Judge as we have explained could only have reached that conclusion in light of his earlier conclusions that the Entry Clearance Officer had wrongly treated the application as an application under the EUSS, whereas in fact it was an application for facilitation of entry and residence made before the end of the transition period on 31 December 2020. The appellant was entitled to that application being properly considered under EU law as required by Art 10(3) of the Withdrawal Agreement and any failure to do so breached the appellant’s right under Art 10 which fell within the first ground of appeal under reg 8(1) and (2)(a) of the 2020 Regulations. That approach is consistent with the court’s findings in Siddiqa.
27. Whilst Ms Clewley did not expressly refer to the Judge’s findings on dependency (at [17-19]) in her submissions, we observe that the Judge’s factual findings on this issue were, as he stated, simply recording his findings on the evidence received. In light of what we have stated above we find it cannot be reasonably inferred on a fair reading of the decision that the Judge was allowing the appeal under the 2016 Regulations.
28. In conclusion, we find that the Judge did not err in law and the respondent has not made out any of her grounds.
29. Pursuant to Art 10(5) of the Withdrawal Agreement it is for the Entry Clearance Officer now to undertake an extensive examination of the appellant’s personal circumstances.
Decision
The First-tier Tribunal’s decision to allow the appellant’s appeal did not involve the making of an error of law and shall stand.

R.Bagral

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

23 June 2025