Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2023-002187
UI-2023-002188
UI-2023-002189
UI-2023-002190

First-tier Tribunal No: EA/04899/2022
EA/04901/2022
EA/05025/2022
EA/05028/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:

8th May 2025

Before

UPPER TRIBUNAL JUDGE LINDSLEY
DEPUTY UPPER TRIBUNAL JUDGE LAY

Between

ENTRY CLEARANCE OFFICER
Appellant
and

BIBI BASHIR (1)
BILAL AHMED BASHIR (2)
BIBI ZHARA BASHIR (3)
HILAL AHMED BASHIR (4)
(ANONYMITY ORDER NOT MADE)
Respondents

Representation:
For the Appellant: Mr K Ojo, Senior Home Office Presenting Officer
For the Respondent: Mr S Kerr, Counsel, instructed by Times PBS

Heard at Field House on 6 May 2025

DECISION AND REASONS
1. For the sake of clarity and consistency, we will refer in this determination to the Entry Clearance Officer as “the Respondent”, as he was in the Tribunal below, albeit he is now the Appellant in the Upper Tribunal seeking to challenge the determination of First-tier Judge Black promulgated on 2 March 2023.
Background and procedural history
2. The first Appellant is a citizen of Afghanistan born in April 1980. The other Appellants are her children, her eldest born on 1 January 2003 and twins born on 28 December 2007. In addition the first Appellant has another child, Iqbal Bashir, born on 6 August 2014 who is a British citizen. It has been decided that Iqbal should reside in the UK, and naturally he wishes to bring his mother as his primary carer. The first Appellant’s husband, and father of Iqbal and the second, third and fourth Appellants, Mr Ajmal Bashir, is also a British citizen who resides in the UK. Iqbal’s siblings, the second, third and fourth Appellants, apply to come to the UK as dependents of their mother.
3. The Appellants made their applications for entry clearance under the EU Settlement Scheme, in reliance on Appendix EU of the immigration rules on 20 August 2021, and were refused in decisions dated 8 March 2022 and 21 April 2022. Their appeals against those decisions were allowed by the First-Tier Tribunal.
4. Permission to appeal was granted by a Judge of the First-tier Tribunal on 16 May 2023 on the basis that it was arguable that the First-Tier Judge had erred in law as there was no “Zambrano” derivative rights route for the Appellants under Appendix EU (Family Permit) and so the First-tier Tribunal Judge had erred in law in finding that they could meet the immigration rules. It was also arguable that they were not permitted to apply under the 2016 Immigration (EEA) Regulations as they had been repealed, as of 31 December 2020, and no provision for Zambrano carers was preserved.
5. Following Directions made by the Upper Tribunal on 15 August 2023, an error of law hearing was listed and heard on 11 October 2023. On 4 March 2025 the Tribunal wrote to the parties stating that the Upper Tribunal Judge who had presided over the hearing in October 2023 was unwell and that “given the delay in promulgating the decision in this case the President proposes to have the matter reheard before a different judge and listed at the earliest available opportunity”.
6. We have had the benefit of a new Composite Bundle, a skeleton argument from the Entry Clearance Officer dated 29 August 2023 supplementing the grounds dated 16 March 2023, a skeleton argument on behalf of the Appellants dated 2 October 2023, a further skeleton argument on behalf of the Appellants dated 5 May 2025 (drafted by Counsel who appeared before us) and the Appeal Skeleton Argument which was relied upon in the FTT.
7. The matter came before us to determine whether the First-tier Tribunal had erred in law and, if so, whether any such error was material and whether the decision of the First-tier Tribunal should be set aside.
Submissions – Error of Law
8. In the grounds of appeal, the skeleton argument and in oral submissions from Mr Ojo, it was argued by the Respondent that the First-tier Tribunal erred in law by misapplying the immigration rules. The original application for entry clearance, dated 20 August 2021, was based on a “Zambrano” derivative right application for the Appellant family members to accompany a British child so that he could live in the UK. There had been a right to make such an application, including for entry clearance, under Regulation 12(4) of the Immigration (EEA) Regulations 2016 but that Regulation was repealed on 31 December 2020 and there was nothing within Appendix EU (Family Permit) which replicated it. The best interests of the children were also brought into play and these were not relevant, it was submitted, to whether one or more children met the requirements of the Immigration Rules.
9. The Appellants’ position was, in writing at least, that there was no error of law in the determination. In the skeleton argument dated 2 October 2023, served ahead of the annulled October 2023 hearing, Counsel argued, at paragraph 14, that one consequence of the High Court’s judgment in Akinsanya, R (On the Application Of) v Secretary of State for the Home Department (Rev 3) [2021] EWHC 1535 was that the Secretary of State had undertaken, by way of a Consent Order and as a matter of policy, to treat Zambrano applications post-1 July 2021 (for a reasonable period of time thereafter, which proved to be until 25 July 2022) as though they were made at a time when the Immigration (European Economic Area) Regulations 2016 had not been revoked. In other words, the Appellants here argued that, just as Zambrano applications brought within the UK were being permitted for an extended period in the context of Appendix EU, so they were also permitted by applicants for entry clearance, just as the Appellants had done. The 2016 Regulations were, it was said, subsisting at the relevant time.
10. Mr Kerr’s skeleton argument for the hearing made an additional argument: namely, that the Respondent should not be permitted to mount a challenge to the FTT’s findings on Paragraph FP1 of Appendix EU (Family Permit) because he “cannot rely on arguments in the Upper Tribunal which were not in dispute before the First-tier Tribunal”. On Mr Kerr’s analysis, the ECO had only disputed whether the first Appellant’s son was a British citizen and whether there was evidence that she was a primary carer. There was no dispute raised as to the existence and/or application of the appropriate immigration rule.
Our conclusions
11. First, as to the Mr Kerr’s reliance on Lata (FtT: principal controversial issues) India [2023] UKUT 163 (IAC) and his contention that the Respondent was, post-FTT hearing, raising issues of dispute which had not been properly identified before. We simply do not accept that this a reasonable construal of the ECO refusal which clearly states, among other things:
“I also note that in your application form you have referred to a Zambrano consideration under the Akinsanya judgement. The Akinsanya judgement is only applicable to those applications made under the Immigration (EEA) Regulations. Your application has been made under Appendix EU (Family Permit) to the Immigration Rules and therefore the Akinsanya judgement does not apply… I am not satisfied that you have provided adequate evidence that you are a 'family member of a Qualifying British Citizen' as defined in Appendix EU (Family Permit) to the Immigration Rules.”
12. We have sympathy with the FTT in circumstances in which there was no Respondent’s Review and then no Home Office Presenting Officer at the appeal hearing itself but the issue of Akinsanya and the proper application of Appendix EU (Family Permit) was plainly in issue in the appeal and the Respondent was entitled to seek permission to appeal on the grounds upon which was granted.
13. Secondly, as to the substance of the FT determination, our primary task is to evaluate whether the Judge rationally applied the immigration rules. The appeal was clearly allowed, at paragraph 8, on the basis that the first Appellant was said to have satisfied “FP1” of Appendix EU (Family Permit) which reads:
FP1. This Appendix sets out the basis on which a person will, if they apply under it, be granted an entry clearance:
(a) In the form of an EU Settlement Scheme Family Permit – to join a relevant EEA citizen or a qualifying British citizen in the UK or to accompany them to the UK (emphasis added)
14. A “qualifying British citizen” is defined within Appendix EU (Family Permit) and includes, for example, a British citizen who “satisfied regulation 9(2), (3) and (4)(a) of the EEA Regulations” – which Mr Kerr conceded was a reference to the so-called “Surinder Singh” route whereby non-EEA national family members of British nationals who have worked in another EEA Member State were entitled to bring those family members “back” to the UK as a matter of EU law. While the “qualifying British citizen” definition is complex, containing several paragraphs, sub-paragraphs and sub-sub paragraphs, Mr Kerr accepted that, on the wording of the definition, there was no basis upon which it could be said that the first Appellant’s son was a “qualifying British citizen” for the purposes of Appendix EU (FP).
15. We were grateful to Mr Kerr for his pragmatism and realism in acknowledging that FP1 could not avail the Appellants.
16. In tandem, more broadly, while the Akinsanya litigation, which led also to a judgment of the Court of Appeal in Akinsanya v Secretary of State for the Home Department [2022] EWCA Civ 37 and a further judgment of the High Court in Akinsanya & Anor, R (On the Application Of) v Secretary of State for the Home Department [2024] EWHC 469 (Admin), did indeed have the effect of opening the door for individuals already in the UK, who either were or could have been recognised Zambrano carers as of the end of the transition period on 31 December 2020, and subsequently sought leave within Appendix EU thereafter, Mr Kerr did not take us to any provision of the rules or the Respondent’s policy which showed that the same door was left ajar by Akinsanya for individuals, like the first Appellant, who were not in the UK at all as of 31 December 2020.
17. This particular scenario is not, according to the rules and guidance, a “specified EEA Family permit case” at all – or, at least, we have not been shown anything to the contrary.
18. Mr Kerr therefore conceded that the appeal, on the EUSS point, fell to be dismissed.
19. Mr Kerr did, however, submit that in the original application of 27 August 2021, the Applicants had raised Article 8 ECHR and that it remained a live issue in this appeal.
20. We reject that submission. Article 8 ECHR was plainly raised in the application and we can recognise that a human rights claim was made under s.113 Nationality Immigration and Asylum Act 2002. The decision-maker, however, did not address the human rights claim at all and did not issue a refusal of that claim; nor was a human rights appeal raised in the IAFT-6; nor did it ever form part of the Appellants’ appeal to the FTT or thereafter. It seems to us clear that the Respondent still has to deal with the Article 8 ECHR claim in due course but that is a separate matter from the appeal which is before us.
21. It follows that we find that the FTT erred materially in law in determining this appeal and that the decision allowing the appeal under the Immigration Rules must be set aside.

Re-making of the appeal decision
22. Having heard from the representatives, we then turned to the re-making of the decision.
23. An error having been found in the FTT’s application of the law, it remained for the Appellants to identify the rule, provision or policy upon which their application could have succeeded. Having accepted that FP1 did not apply, Mr Kerr also accepted that, in remaking the decision, the legal framework did not admit of anything other than a dismissal of the Zambrano element of this appeal. The appeal therefore must be dismissed on re-making.
24. We note that FTJ Black made certain findings of fact in the Appellants’ favour. The ECO refusals had complained of a lack of evidence that the Appellants were related as claimed to Iqbal, their British citizen son/sibling and a lack of evidence that the first Appellant was Iqbal’s primary carer. The First-tier Tribunal was satisfied that the Appellants were related as claimed, that the first Appellant was Iqbal’s primary carer and that it was in the best interests of the children that they “exist as a family unit in the UK and to join their father”. We see no reason not to preserve those findings, i.e. what can be found at paragraph 7 of the FT determination. It may well be of relevance in due course to consideration of the human rights claims.

Notice of Decision
The First-Tier determination of FTJ Black, which allowed the appeals, is set aside owing to an error of law, albeit the factual findings at paragraph 7 are preserved.
The decision on the appeals is re-made by the Upper Tribunal and the appeals are dismissed.

Taimour Lay

Judge of the Upper Tribunal
Immigration and Asylum Chamber

7 May 2025