Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2023-003637
First-tier Tribunal No: EA/50887/2022
IA/05628/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 16 September 2025

Before

UPPER TRIBUNAL JUDGE O’CALLAGHAN
DEPUTY UPPER TRIBUNAL JUDGE SAINI

Between

NASIR KHALIL
(NO ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr P Georget, Counsel, instructed by Briton Solicitors
For the Respondent: Mr P Deller, Senior Presenting Officer

Heard at Field House on 23 April 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant’s wife, AA, and her children are granted anonymity.

No-one shall publish or reveal any information, including the name or address of AA and her children, likely to lead members of the public to identify AA or the children.

Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
Introduction
1. The Upper Tribunal is required to remake a decision in respect of the appellant’s appeal against a decision of the respondent to refuse him a residence card confirming that he is the unmarried partner of an EEA national exercising EU Treaty Rights in the United Kingdom. This was the second decision issued by the respondent on the appellant’s application and dated 13 May 2022.
2. The respondent has previously accepted, and various judges have found, that the appellant and his sponsor are in an ongoing genuine relationship amounting to, for the purposes of the Immigration (European Economic Area) Regulations 2016, a durable relationship.
3. The appellant challenges the respondent’s conclusion not to exercise discretion under regulation 18(4)(c) of the 2016 Regulations, which in turn requires an assessment of the principles established by regulation 8(8). He contends that the respondent should have exercised discretion in his favour and issued him with a residence card.
4. The appellant additionally contends that the Upper Tribunal is required to consider his right to a residence card as the spouse of an EEA national exercising EU Treaty Rights. It is said that the respondent issued a decision dated 10 June 2022 and that although the respondent failed to consider the appellant as the spouse of his EEA national wife, and consequently a family member, she should have undertaken this task at the time of this decision.
5. The appellant was convicted by a jury of doing “an act which facilitates commission of a breach of immigration law by an individual who is not a citizen of the European Union” contrary to section 25 of the Immigration Act 1971. His sponsor, AA, who at the time was a child, was a victim of the crime. The appellant was sentenced to a custodial term of fifteen months on 23 September 2016.
6. After various unsuccessful challenges, the appellant was deported to Pakistan on 31 December 2019.
7. The sponsor is lawfully present in the United Kingdom and resides with the couple’s children.
Anonymity
8. To date the appellant in this appeal has not been anonymised. We are mindful of the importance of open justice, which is an important safeguard in maintaining public confidence in the impartial administration of justice by ensuring that judicial hearings are subject to public scrutiny.
9. Observing that the appellant’s conviction and sentence in 2016 are in the public domain, we consider that the public’s right to know his identity outweighs his protected rights under article 8 ECHR. Consequently, we do not make an anonymity order in respect of the appellant.
10. The sponsor was a victim of the appellant’s criminal offending. She met the appellant when she was 15 and they were married by an Islamic religious ceremony (“Nikah’) shortly after she turned 16. The sentencing Judge concluded that the jury found the appellant engaged in the religious ceremony solely to secure status in this country and consequently the sponsor was deceived when entering into the marriage.
11. We observe that though the sponsor now supports the appellant, she was and remains a child victim of a serious crime.
12. We are mindful of UTIAC Guidance Note 2022 No 2: “Anonymity Orders and Hearings in Private”. Having considered the detailed evidence in the round, being mindful that the sponsor was a child victim of a crime that we are required to expressly address in this decision and observing the risk of jigsaw identification if we anonymise the sponsor but not her children, we are satisfied that the sponsor’s private life rights protected by article 8 ECHR, as incorporated domestically by the Human Rights Act 1998, outweigh the public’s right to know her identity and the identity of her children as persons involved in tribunal proceedings, the latter right being protected by article 10 ECHR.
13. In reaching our decision to anonymise a mother and her children, but not the appellant, we observe that the appellant’s name is not unusual, and we are satisfied that its publication alone will not lead to jigsaw identification. Additionally, we note the care taken by the sentencing judge in 2016 to protect the sponsor’s identity when publicly sentencing the appellant to a custodial term of imprisonment, at a time when the sponsor was a young adult.
14. Consequently, we grant the sponsor and her minor children anonymity. The order is detailed above and for convenience we refer to the sponsor as “AA”. For clarity, the scope of the order covers any identification of the village, town, city, county or region in which AA and her children reside as well as where the children attend school to prevent jigsaw identification.
15. To the extent that the sponsor was named in earlier First-tier Tribunal decisions this Tribunal may, and in this case does, impose an anonymity order that has effect in respect of the entirety of the proceedings under section 82 of the Nationality, Immigration and Asylum Act 2002: Cokaj (anonymity orders: jurisdiction and ambit) [2021] UKUT 00202 (IAC), [2021] Imm AR 1562.
16. The representatives concurred with the approach adopted by this panel to anonymity.
Relevant facts
17. The appellant applied for entry clearance as a family visitor on 12 May 2008 and again on 11 January 2011. The applications were refused by an entry clearance officer on 11 June 2008 and 19 January 2011 respectively. The appellant successfully appealed the second refusal and was issued with a visa valid from 25 August 2011 until 25 February 2012. He entered the country and subsequently overstayed.
18. Having declared his first marriage during his entry clearance application, the appellant has since produced a certificate evidencing that he divorced his first wife in 2012. His first wife did not accompany him to the United Kingdom.
19. The appellant and the sponsor, an EEA national, undertook Nikah in November 2013. The sponsor was then aged sixteen years and four days old. The appellant was aged thirty-six. The sentencing Judge observed as to the ceremony:
“The ceremony that you asked [the sponsor] to go through was not conducted in a language that she understood and as I understand it, she received little or no instruction before the conversion to Islam.”
20. A year later, in November 2014, the appellant was arrested in respect of an immigration offence. Later that month, he applied for an EEA residence card as an extended family member. The application was refused in March 2015 consequent to the appellant failing to provide his passport. A second application was rejected in October 2015 due to his failure to provide necessary biometric information.
21. The appellant stood trial and was convicted by a jury on one count under section 25 of the 1971 Act. In his sentencing remarks, having addressed the benefits to a non-EU foreign national in securing an EEA residence card and noting the concept of a “sham marriage” in domestic immigration law, the Judge observed that a person could establish that they were a family member of an EEA national by entering into a Nikah to evidence a durable relationship. The Judge identified the jury’s acceptance that the appellant entered into his marriage with the sponsor solely to deceive the immigration authorities, and he drew the inference that the appellant deceived the sponsor when entering the marriage, though a genuine friendship had developed between the couple by this time and the sponsor was attracted to the appellant. The Judge recognised that sham marriages have the effect of undermining the system of border controls in this country.
22. As to the subsequent development of the relationship over time, the Judge observed:
“It was clear [the sponsor] was devasted by the police arrival and you being taken away and the police officers in this case accepted that by that point, whatever had been the situation initially when that Nikah of convenience had taken place, they were now dealing with a situation of a genuine relationship between a man and a woman and their child.”
23. The Judge remarked:
“So it seems that in your case, although the Nikah was of convenience to enable you to proceed towards getting a residence card the relationship then developed between you so that once you had a home to live in of your own ... that was a genuine relationship and the police accepted that was the position. The relationship has been tested with draconian bail conditions where you could not see her for many months and then were remanded in custody for another six months ...
So it’s clear that when you applied to the Home Office in this case for a residence card you were in a genuine relationship and assuming that she had a job, which she said that she did, there’s no evidence that she didn’t, it does not appear that the Home Office were actually being deceived even though they didn’t actually grant you a card. So, although you deceived [the sponsor] initially and entered into this Nikah purely for your own purposes to get round the immigration rules, the relationship had developed and that is a significant factor in this case.
...
This was a single instance as I say, it was cynical at the beginning, but all the evidence points to the fact that you were, by the time that the police arrested you, in a genuine relationship with [the sponsor].”
24. The appellant claimed asylum in 2016, asserting a fear of the Taliban in Pakistan. The application for international protection was overtaken by the appellant’s conviction and custodial sentence. The respondent directed that the appellant be deported by a decision dated 24 February 2017 and on the same day a deportation order was signed.
25. The appellant’s appeal against the decision to deport was eventually dismissed by the First-tier Tribunal in October 2019. We observe that the respondent accepted in her decision letter that the appellant and sponsor were in a durable relationship, as noted at [24] of the First-tier Tribunal’s decision. We further observe the First-tier Tribunal’s conclusion that the appellant did not enjoy the benefit of the exclusion regime established by the 2016 Regulations because there was no extant application for a residence card: Macastena v Secretary of State for the Home Department [2018] EWCA Civ 1558, [2019] 1 WLR 365, at [17]-[19].
26. On 5 August 2019, the sponsor was granted indefinite leave to remain in the United Kingdom under Appendix EU to the Immigration Rules.
27. The appellant made a further application for an EEA residence card on 19 October 2019. He used the prescribed application form which confirmed, inter alia:
“Use this application form if you are unable to apply online and you wish to apply for a registration certificate (if you’re an EEA national) or a residence card (if you’re a non-EEA national) as the extended family member of a relevant EEA national.”
“You will only be considered for a registration certificate or residence card as the extended family member of an EEA national. You will not be considered for anything else. You must use a different form if you want to stay for another reason.”
28. By a decision dated 11 November 2019, the respondent accepted the appellant was in a genuine relationship with the sponsor but declined to exercise discretion in his favour. The appellant appealed. In the meantime, he was deported to Pakistan on 31 December 2019.
29. The appellant’s appeal against the EEA residence card decision was allowed by a decision of the First-tier Tribunal, dated 7 February 2020. The couple were found to be in a durable relationship, and the matter was remitted back to the respondent for reconsideration of her assessment under regulation 8(8) of the 2016 Regulations. The lawfulness of the First-tier Tribunal’s decision was subsequently confirmed by the Upper Tribunal in a decision dated 7 April 2021.
30. In the meantime, the sponsor travelled to Pakistan and the couple were married in October 2020. The sponsor has since visited the appellant in Pakistan on several occasions accompanied by their children.
31. As directed by the Upper Tribunal the respondent reconsidered the application of 16 October 2019 and issued a new decision on 13 May 2022. We note that the reconsideration was undertaken in respect of regulations 18(4) and 18(5) of the 2016 Regulations in accordance with the principles of regulation 8(8) which are concerned with extended family members. The assessment was directed towards whether it was appropriate to exercise discretion and issue a residence card.
32. The respondent reasoned that the appellant was an individual whose character and conduct are not conducive to the public good. He made premeditated and calculated decisions to undermine and circumvent the United Kingdom’s immigration controls both through entering into a sham relationship with the sole purpose of deceiving immigration officials in an attempt to secure leave he was not otherwise entitled to, and also in overstaying the expiration of his visit visa for almost seven years. It was observed that previous adjudications have concluded that the best interests of the couple’s children could be met in several locations, with one judge identifying multiple options that would be equally suitable. The respondent observed that the appellant had not sought to revoke the deportation order and consequently a refusal to issue a residence card would have no material impact to his current familial circumstances.
33. Additionally, the respondent reasoned:
“23. ... if the Secretary of State were to grant you an EEA residence card under the discretionary powers afforded within regulation 18(4)(c) of the EEA Regulations, you would be afforded public policy protections that would effectively result in the revocation of your current, active deportation order. This would undermine the effectiveness of the UK’s immigration controls ...”
34. The letter concluded:
“31. You currently have an ongoing appeal outstanding against this department’s previous decision taken on 11 November 2019. As such, you are invited to make any relevant representations as part of that appeal.
32. Please note: The residence documentation that you have applied for is linked to the UK’s membership of the EU. As of 30 June 2021 this route closed and there is no further provision to issue documentation.”
35. The respondent wrote to the appellant’s solicitors on 31 May 2022 confirming her understanding that the Upper Tribunal decision of 7 April 2021 brought previous appeal proceedings to an end, and consequently the new decision should enjoy a fresh right of appeal. To this effect, the respondent acknowledged her earlier misunderstanding that led her not to grant appeal rights by her decision dated 13 May 2022.
36. The appellant’s representatives responded by an email dated 10 June 2022 detailing in brief terms:
“... we appreciate your email and request you to consider further documents (change of circumstances) before making the decision.”
37. The documents attached to the email were not identified in the body of the correspondence, and to date it remains unclear to this panel precisely what documents were actually served. However, the panel understands the respondent to accept that it was on this date in June 2022 that she was informed as to the appellant’s marriage having taken place in Pakistan in October 2020.
38. The appellant was served a supplementary letter dated 10 June 2022 advising him that he has a right of appeal to the First-tier Tribunal, which he subsequently exercised. We cite the content of the letter in full:
“Further to your decision notice dated 13 May 2022, please be advised that you have a right of appeal against this decision under regulation 36 of the Immigration (European Economic Area) Regulations 2016 (as amended). This appeal may be brought before the First-tier Tribunal (Immigration and Asylum Chamber (IAC)) while you are in the UK and may continue while you are outside of the UK if necessary.
You have 14 calendar days from the date of this supplementary letter to appeal. Information on how to appeal, the appeal process and the fees payable are all available online at: https://www.gov.uk/immigration-asylum-tribunal/overview”
39. The appellant has subsequently informed the panel through counsel that after both exercising his right of appeal and the respondent issuing her latest decision, he has applied for leave to enter under Appendix EU (Family Permit) as the spouse of an EEA national. It is understood that the respondent is awaiting the panel’s decision before considering the EUSS family permit application. The panel further understands that to date the appellant has not made an application for the revocation of his deportation order. The EUSS application and any application to revoke fall outside our consideration of the matter before us.
Procedural history
40. The First-tier Tribunal initially allowed the appeal by a decision dated 26 July 2023. The respondent was granted permission to appeal, and the Upper Tribunal set aside the decision in its entirety by a decision sent to the parties on 29 November 2023.
41. The resumed hearing first came before this panel on 22 August 2024. The respondent identified that the appellant’s marriage should be considered a new matter and conceded that the appellant’s appeal should be allowed. The panel issued directions requiring the respondent to file and serve a written note detailing the scope and substance of the concession. The panel indicated that upon receipt of the written note, the expectation was a decision would be prepared and issued without the requirement of a further hearing. However, the panel reserved the ability to reconvene the hearing.
42. Subsequently, the respondent wrote and requested that the hearing be reconvened. She withdrew her concession that the appeal be allowed at a hearing before the panel on 15 October 2024 and requested time to consider her previous indication that the appellant’s marriage be considered a new matter.
43. Before us in April 2025 Mr Deller clarified the respondent’s position as to whether there was a new matter. Whilst the marriage had as a fact rendered the appellant capable of being a family member beneficiary under article 2.2 of the Citizens’ Rights Directive as transposed by regulation 7 of the 2016 Regulations, the respondent’s position was that there has been to date no application for documentation pursuant to that right and so the existence of the marriage did not fall for consideration in this appeal.
Relevant Law
44. The application for a residence card as an extended family member under the 2016 Regulations was made on 16 October 2019, a date before the end of the transition period at 23.00 on 31 December 2020 provided for in the Withdrawal Agreement.
45. The application was refused by a decision dated 11 November 2019 and the appellant was successful on appeal in February 2020 to the extent that the matter was remitted back to the respondent to conduct an extensive examination of character and conduct. Both decisions were made prior to the end of the transition period.
46. The challenged decision was issued on 13 May 2022, after the end of the transition period. Consequently, the decision was, and the appeal proceedings are, governed by Schedule 3 to the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020 (‘the Consequential Regulations’).
Pending applications for documentation under the 2016 Regulations
47. Paragraph 3(4) of Schedule 3 to the Consequential Regulations confirms:
“Regulation 18 of the EEA Regulations 2016 (issue of residence card), continues to apply for the purposes of considering and, where appropriate, granting an application for a residence card which was validly made in accordance with the EEA Regulations 2016 before commencement day.” [Emphasis added]
48. The respondent was therefore permitted by the Consequential Regulations to make a new decision on the validly made residence card application as an extended family member following the Upper Tribunal’s decision to uphold the First-tier Tribunal’s decision allowing the appellant’s first appeal.
Existing appeal rights and appeals
49. Paragraph 5(1)(d) of Schedule 3:
‘Subject to sub-paragraph (4), the provisions of the EEA Regulations 2016 specified in paragraph 6 continue to apply— (d) in respect of an EEA decision, within the meaning of the EEA Regulations 2016 as they continue in effect by virtue of these Regulations or the Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020, which is taken on or after commencement day’.
50. Paragraph 6(1)(u) of Schedule 3 saves regulation 36 of the 2016 Regulations without modification.
51. Regulation 36:
“36
(1) The subject of an EEA decision may appeal against that decision under these Regulations.
...
(3) If a person claims to be in a durable relationship with an EEA national, that person may not appeal under these Regulations without producing— (a) a valid passport; and (b) either— (i) an EEA family permit; or (ii) sufficient evidence to satisfy the Secretary of State that the person is in a relationship with the EEA national.”
52. The appellant is not in personal scope of the Withdrawal Agreement, the EEA EFTA Separation Agreement or the Swiss Citizens’ Rights Agreement. The sole permitted ground of appeal available to him is that provided by paragraph 6(1)(cc) of Schedule 3 which saves Schedule 2 to the 2016 Regulations with modifications specified in sub-paragraph (bb):
‘that the decision breaches the appellant’s rights under the EU Treaties under the Immigration (European Economic Area) Regulations 2016 as they are continued in effect by these Regulations ... in respect of entry to or residence in the United Kingdom (“an EU ground of appeal”)’.
53. The effect of the amendment is, in effect, whether the decision under appeal breaches the appellant’s rights under the EU Treaties as they applied in the United Kingdom prior to 23.00 on 31 December 2020.
Extended Family Member
54. Turning to the 2016 Regulations, regulation 8 addresses “extended family members” and transposes article 3 of the Citizens’ Rights Directive into domestic law. We observe the summary of relevant law provided in the headnote to Sohrab and Others (continued household membership) Pakistan [2022] UKUT 00157 (IAC).
55. Regulation 8(1) and (2):
“(1) In these Regulations ‘extended family member’ means a person who is not a family member of an EEA national under regulation 7(1)(a), (b) or (c) and who satisfies a condition in paragraph (1A), (2), (3), (4) or (5):
...
(2) The condition in this paragraph is that the person is -
(a) a relative of an EEA national; and
(b) Residing in a country other than the United Kingdom and is dependent upon the EEA national or is a member of the EEA national’s household; and either -
(i) Is accompanying the EEA national to the United Kingdom or wants to join the EEA national in the United Kingdom; or
(ii) Has joined the EEA national in the United Kingdom and continues to be dependent upon the EEA national, or be a member of the EEA national’s household.”
56. The 2016 Regulations provide that once it has been established that a person is an extended family member within the meaning of regulation 8, the respondent must decide whether in all the circumstances a right of entry/residence should be granted. In respect of a residence card this is undertaken under regulation 18(4)(c) and in respect of an EEA family permit under regulation 12(4). This is a matter of discretion but requires an extensive examination of the person’s personal circumstances and a refusal is to be justified by reasons.
57. Paragraph 6(g) of Schedule 3 saves regulation 8 of the 2016 Regulations without modification. This includes:
“(8) Where an extensive examination of the personal circumstances of the applicant is required under these Regulations, it must include examination of the following— (a) the best interests of the applicant, particularly where the applicant is a child; (b) the character and conduct of the applicant; and (c) whether an EEA national would be deterred from exercising their free movement rights if the application was refused.”
Family member
58. Regulation 7 of the 2016 Regulations concerns the rights of entry and residence for “family members”, a term of art defined to include a person’s spouse. This regulation is saved without modification by paragraph 6(f) of Schedule 3.
59. In respect of a family member, the Citizens’ Rights Directive does not permit a refusal to issue a residence card on public policy, public security or public health grounds. The Directive is expressed unambiguously in mandatory terms. Member States do not possess a power to dispense with complying with the requirement to issue a residence card to a family member so long as the documentary evidential requirements are met. However, the issuing of a residence card is an administrative matter and the importance of the administrative process commencing with an ‘application’ is addressed below in our analysis.
Issuing of a Residence Card
60. Regulation 18 of the 2016 Regulations is concerned with the issuing of a residence card. Relevant to this appeal:
“(1) The Secretary of State must issue a residence card to a person who is not an EEA national and is the family member of a qualified person or of an EEA national with a right of permanent residence under regulation 15 on application and production of -
(a) a valid passport; and
(b) proof that the applicant is such a family member.
...
(4) The Secretary of State may issue a residence card to an extended family member not falling within regulation 7(3) who is not an EEA national on application if— (a) the application is accompanied or joined by a valid passport; (b) the relevant EEA national is a qualified person or an EEA national with a right of permanent residence under regulation 15; and (c) in all the circumstances it appears to the Secretary of State appropriate to issue the residence card.
(5) Where the Secretary of State receives an application under paragraph (4) an extensive examination of the personal circumstances of the applicant must be undertaken by the Secretary of State and if the application is refused, the Secretary of State must give reasons justifying the refusal unless this is contrary to the interests of national security.” [Emphasis added]
61. The issuing of a residence card to an extended family member is an act of discretion: regulation 18(4) and (5).
62. Save for residence card applications validly made in accordance with the 2016 Regulation before commencement day, this regulation was not saved Schedule 3.
63. Residence cards were no longer valid after 30 June 2021. Anyone who held one and wishes to remain in the United Kingdom is required to hold valid immigration status.
EEA family permit
64. The EEA family permit was an immigration route established by regulation 12 of the 2016 Regulations that allowed non-EEA family members to join or accompany an EEA national in the United Kingdom. The route closed to new applicants on 30 June 2021 as this regulation was not saved by Schedule 3.
65. From 30 June 2021, issued EEA family permits were no longer valid. Anyone who held one and wishes to remain in the United Kingdom is required to hold valid immigration status.
Analysis
66. We take the opportunity to thank Mr Georget and Mr Deller for their very helpful submissions. They were of the quality we have come to expect from both representatives. We address our conclusions below in short terms, as there is only one conclusion open to us, but this is not to diminish the aid we received from both representatives.
Requirement – specified application form
67. Before the United Kingdom left the European Union, for an application to be issued with a document confirming a right of residence to be valid, it had to be submitted on the specified application form with all relevant sections completed, as confirmed by the respondent’s guidance, “Processes and procedures for EEA documentation applications” version 8.0 (14 February 2019), at pages 9 to 10.
68. An application for a residence card as an extended family member was required to be submitted whilst the applicant was in the United Kingdom and either made online, where applicable, or using the specified form EEA(EFM). There was a fee of £65 per each applicant applying with a separate fee of £12.50 for each non-EEA person requiring biometric enrolment, to be paid in addition to the application fee. If the full fee was not paid, the application would be invalid and returned without consideration. We observe that one of the appellant’s earlier applications for a residence card was rejected as invalid for failure in respect of biometric enrolment.
69. We observe that the appellant used the specified form and paid the relevant fee when submitting his application for a residence card as an extended family member in October 2019.
70. An application for a residence card as a family member also had to be submitted whilst the applicant was in the United Kingdom. The application could either be made online, where applicable, or using the specified form EEA(FM). Again, there was a fee of £65 for each person applying and if the full fee was not paid the application would be invalid and returned without consideration.
71. We address below the fact that no specified application form has been submitted by the appellant in respect of a residence card application as the family member of his sponsor. Nor was the purported application, submitted by email in June 2022, made whilst the appellant was present in the United Kingdom; he was residing in Pakistan.
72. An application for an EEA family permit was dealt with by visa services and could only be made online. There was no fee charged. No such application was made by the appellant following his deportation to Pakistan in December 2019.
73. Therefore, for the purposes of this appeal there has only been one application made by means of the required specified application form, whether in paper form or online, namely the application for an EEA residence card submitted on 19 October 2019. This application for a residence card was founded upon the appellant being a non-EEA national and the extended family member of an EEA national with whom he was in a durable relationship.
Preliminary issue
74. Though not raised in the decision letters issued since the application was submitted in October 2019, the respondent contends before us that consequent to the appellant’s deportation on 31 December 2019 he ceased to be resident in this country and therefore ceased to be eligible from that date, even in principle, for residence documentation.
75. If no decision on the outstanding application had been issued before the appellant’s deportation the respondent’s contention would be correct. The appellant would not have enjoyed protection from the application being automatically considered abandoned under the 2016 Regulations as no protection from abandonment by leaving a member state is provided for by the Citizens’ Rights Directive. However, the initial decision on the application was issued on 11 November 2019 and the appellant filed an in-time appeal with the First-tier Tribunal pursuant to regulation 36 of the 2016 Regulations. These events took place before he was deported. Consequently, the appellant enjoyed the protection of regulation 35(4):
“(4) A pending appeal is not to be treated as abandoned solely because the appellant leaves the United Kingdom.”
76. Regulation 35(4) is rooted in the procedural safeguards established by article 31 of the Citizens’ Rights Directive concerned with access to judicial procedures and is concerned with judicial consideration of an administrative decision. Whilst regulation 35(4) may possibly be said to protect a wider cohort than that envisaged by article 31, it is generally consistent with rule 16 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 where abandonment need not follow if an appellant wishes to pursue their appeal.

Extended family member
77. Fatally for the appellant from the date of his marriage on 22 October 2020 he was not eligible for a residence card as an extended family member. It remains unclear to this panel as to why the respondent was only informed of the marriage by email on 10 June 2022, some nineteen months and two appeal hearings after the event.
78. Regulation 8(1), as well as regulation 8(2), are expressed in the present tense. Consequently, as of 22 October 2020 the appellant did not meet the requirements of regulation 8(1).
79. The respondent accepted in her decision letter of June 2019 that the appellant and sponsor are in a durable relationship, and this concession is consistent with a judicial finding of fact in August 2017 that the couple were in a loving and stable relationship. The issue raised in this appeal concerns the respondent’s decision not to exercise discretion under regulation 18(4)(c) of the 2016 Regulations following an assessment under regulation 8(8). However, the requirement that this assessment be undertaken falls away if the applicant was in fact a family member and not an extended family member.
80. Amplifying the futility of the appeal before us, at least in respect of the element founded upon the application for a residence card as an extended family member, is that Schedule 3 to the Consequential Regulations creates no more than a mechanism by which appellants can seek findings of fact, amounting to a declaration, about their status prior to 23.00 on 31 December 2020. This finding may be relevant to whether they come within the scope of the Withdrawal Agreement and consequently the EUSS. What has not been preserved are the substantive rights that were enjoyed under the 2016 Regulations. Those applicants who received a decision prior to the 31 December 2020 enjoyed direct recourse to the Treaties. Those who were required to wait until after that date for a decision on an application made before 23.00 on 31 December 2020 did not enjoy direct recourse. The preserved right of appeal amounts, primarily, to a means of permitting the appellant to assert that they are someone who would be entitled to regularisation of their position post-implementation day, in this instance, as an extended family member. However, the entitlement, if any, in this matter would arise from the appellant’s status before 23.00 on 31 December 2020 and at that time he was married to his sponsor and so could not enjoy the status of extended family member.
81. We observe that this matter came before the Upper Tribunal and by a decision sent to the parties in April 2021 the decision of the First-tier Tribunal to remit the matter back to the respondent to undertake a lawful assessment under regulation 8(8) was upheld. The Upper Tribunal was unaware of the marriage and so understood the appellant as wishing to be considered as an extended family member. Additionally, at the time of its decision the respondent continued to issue residence cards. As observed above, all previously issued residence cards have not been valid since 30 June 2021. The appellant secures no benefit from the previous Upper Tribunal decision as he had not provided full disclosure of his personal circumstances.
82. The appeal must fail in respect of the application for a residence card as an extended family member.
Family member
83. Turning to the appellant’s case in respect of his being a ‘family member’, we note that articles 6 and 7 of the Citizens’ Rights Directive confer rights of residence on Union citizens and their family members as defined in article 2.2 subject to certain conditions. Article 10.1 provides that the right of residence of family members is to be evidenced by the issue of a residence card.
84. Mr Georget properly accepted that the appellant had not made an application for a residence card as a family member of an EEA national by a specified application form before commencement day. He submitted that it was sufficient that an application for a residence card had previously been made.
85. The difficulty for the appellant is that the application in October 2019 was solely premised on seeking a residence card as an extended family member. We observe the warning on the form that the application for a residence card would only be considered “as the extended family member of an EEA national” that no consideration would be given “for anything else” and a different form must be used “if you want to stay for another reason”.
86. We further observe that the appellant was on notice from previous experience that a failure to comply with relevant application requirements would result in an application being rejected.
87. Ultimately, we conclude that no valid application for a residence card as a family member was ever made. It required either an online application, or to be made by the specified EEA(FM) application form. At its highest, the appellant’s legal representatives did no more than email the respondent in June 2022 to inform her of his marriage and to provide documents attesting to this fact. As to whether this could properly constitute an application for a residence card as a family member, we observe in addition to the failure to use the specified application form, that at this date the appellant did not meet the requirement that he be residing in the United Kingdom.
88. Articles 9 and 10 of the Citizens’ Rights Directive are concerned respectively with administrative formalities for family members who are not nationals of a Member State and the issue of residence cards. Both expressly reference the requirement that an application be submitted. We consider that there was no obligation upon the respondent to consider the appellant’s right to join his sponsor in this country until an application meeting relevant requirements was made. With the appellant residing outside of the United Kingdom following his deportation, the appropriate application was for an EEA family permit to be made online.
89. The Upper Tribunal’s ability under regulation 9(4) of the 2020 Regulations to consider any matter it believes relevant to the substance of the decision appealed against is tempered by regulation 9(6) of the Immigration (Citizens' Rights Appeals) (EU Exit) Regulations 2020 as a new matter must not be considered without the consent of the respondent as Secretary of State. No consent was provided in this matter.
90. Before us the appellant sought to rely upon his marriage and contended that it was not a new matter. He submitted that as the decision of 13 May 2022 did not recognise his right of appeal, and he detailed his marriage in email correspondence on 10 June 2022, the letter of 10 June 2022 was properly to be considered a supplementary decision letter with time to exercise a right of appeal running from this time. Underpinning this contention is that it was sufficient alone for the 2019 application to be one for a residence card. It is said by the applicant that underlying basis of the application, whether as an extended family member or as a family member, is irrelevant. This is despite different specified application forms or different forms online being in use.
91. As is clear from the content of the June 2022 letter cited in full above, the document is identified as a ‘supplementary letter’ solely addressing the right of appeal. It does not purport to be a supplementary decision. In any event, the appellant’s contention founders upon the rock that is the respondent not being required to consider an application for a residence card as a family member unless relevant requirements are met, such as the use of the relevant specified application form when in the United Kingdom, an online application or attendance at a port of entry. The appellant cannot bypass, as he seeks, the requirement as to the nature and substance of the application established by the respondent which is founded upon the Citizens’ Rights Directive.
92. There was no application validly made before commencement day as required by paragraph 3(4) of Schedule 3 to the Consequential Regulations. In the circumstances, reliance upon the marriage and family membership can properly only be considered a new matter to which the respondent has not given consent: Ayoola (previously considered matters) [2024] UKUT 00143 (IAC).
93. Underpinning our consideration above is that the email was sent by the appellant’s representatives on 10 June 2022, long after applications for residence cards ceased to be permitted and indeed long after residence cards ceased to be valid.
Notice of Decision
94. By a decision dated 29 November 2023 the Upper Tribunal set aside the decision of the First-tier Tribunal dated 26 July 2023.
95. The decision is remade, and the appeal is dismissed.
96. An anonymity order is made in respect of AA and her children.

D O’Callaghan
Judge of the Upper Tribunal
Immigration and Asylum Chamber

9 September 2025