Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2023-004864
UI-2023-004865

First-tier Tribunal No: EA/04555/2022
EA/04608/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 21 July 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE GILL

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MR CHARLES CHIBUIKE ONUKWUGHA
& MS CHEMMA MARIA ASSUMPTA ONUKWUGHA
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr Parvar, Senior Home Office Presenting Officer
For the Respondent: Ms Dirie of Counsel, on behalf of Liberty & Co Solicitors

Heard at Field House on 30 June 2025

DECISION AND REASONS
1. This is an appeal by the Secretary of State against a decision by First-tier Tribunal Judge Hosie (‘the judge’), promulgated on 22 December 2022, which allowed the appeals under the Appendix EU Exit Regulation. For convenience, I shall refer to the parties as they appeared before the First-tier Tribunal (‘FtT’). Therefore, I shall refer to the appellant as ‘the respondent’ and to the respondents as ‘the appellants’. Permission to appeal was granted by the FtT on 18 January 2023. This appeal was previously adjourned pending the judgement of the Court of Appeal in the case of SSHD v Rexhaj [2025] 1 WLR 63.
Background
2. In summary, the appellants arrived in the UK on 20 and 31 January 2022 following the grant of their EUSS family permit valid from 23 August 2021 to 23 February 2022. They remained in the UK with their daughter and made an application dated 5 February 2022 for settled/pre-settled status. The Respondent refused this application by notice of refusal dated 2 May 2022. The Respondent refused the Appellants’ application under EU 6 of Appendix EU on the basis that, they applied on or after 30 June 2021 and were therefore required to provide evidence of their dependency on their relevant EEA citizen. At the time of the hearing at the FtT it was accepted that the appellants daughter was a full-time student in the UK. The FtT allowed the appeal, and in doing so considered that the appellants’ dependency could be assumed.
Grounds of Appeal
3. The respondent argues that the judge made a material misdirection of law on a material matter for the following reasons:
a. “At [60] of the determination the First Tier Tribunal Judge (FTTJ) states the following (emphasis added),
“For all the reasons given and taking into account the current version of the Immigration Rules I find that the Appellants meet the definition of family members who are dependent parents and that in the circumstances of their case dependency is assumed. The Respondent was not correct to refuse the appeals on that basis. They were granted a family permit by the Respondent in August 2021 and they now seek to extend it so that they can remain in the UK with their daughter. The evidence provided shows that nothing has changed in relation to that set of circumstances and they applied in relation to the present appeal within a period of valid leave which has not been cancelled or otherwise revoked. To the extent that the application was after 30 June 2021 there were reasonable grounds of a practical nature which prevented the Appellants from applying as they were awaiting a decision in relation to their application of 31 December 2020. To disallow a further application for continuous leave for a family member in such a situation would seem contrary to the Respondent’s guidance and the situations in which the Respondent makes clear it will allow late applications. It cannot be the case that family members who otherwise meet the rules can be prevented from progression towards continuous leave because the Respondent has produced a favourable decision on their initial application after the cut-off.”
b. It is respectfully submitted that the FTTJ has materially erred in law in finding that both Appellant’s dependency is assumed under Appendix EU of the Immigration Rules, despite the Appellants applications being made after the 30 June 2021 cut off.
c. As the Appellant’s applications were made under Appendix EU after 1 July 2021, the Appellants are required to provide evidence of their dependency on their EEA national sponsor. This means that although an appellant may have applied for an EUSS Family Permit before 1 July 21 (and therefore dependency was assumed), they came to the UK and applied as a “Joining Family Member” after 1 July 2021. Therefore, in accordance with definition of “dependent parent” contained within Appendix EU, they would now have to provide evidence of dependency on their EEA national sponsor. This following expert (sic) from the definition of “dependent parent” within Annex 1 of Appendix EU states the following (emphasis added), “c) this sub-paragraph applies (and the applicant therefore has to meet no requirement as to dependency) where: (i) the applicant was previously granted limited leave to enter or remain under this Appendix as a dependent parent, and that leave has not lapsed or been cancelled, curtailed or invalidated;”
d. It is submitted that both Appellants were not granted limited leave to enter or remain under Appendix EU, having been granted leave to enter the UK under Appendix EU (Family Permit). It is maintained that this is a separate appendix of the Immigration Rules. Therefore, as the Appellants’ applications for pre-settled status under Appendix EU were made after 1 July 2021, they are required to demonstrate dependency on their EEA national sponsor.
e. As the FTTJ fails to make any findings or refer to any evidence that demonstrates the Appellants current dependency on their EEA national sponsor, it is respectfully submitted that the FTTJ has made a material misdirection of law in respect of the requirements of Appendix EU of the.”
Discussion
4. I was provided with a composite bundle consisting of 207 pages and the appellants’ Response dated 14 March 2025, which the Secretary of State for the Home Department’s (‘SSHD’) had not been served. I heard submissions from both parties and have referred to the relevant evidence and submissions in my discussion below.
5. Following the Court of Appeal’s judgement in the case of Rexhaj the appellants reviewed their position and conceded that the SSHD’s appeal succeeds. Having made the concession, the appellants went on to submit:
“The appellants aver that their appeals against the SSHD’s decision must succeed in any event, on the basis of the argument advanced by the AIRE Centre in Rexhaj that the Court of Appeal declined to determine (see [64]-[69] of the judgement).”
6. Mr Parvar, on behalf of the respondent, submitted that the AIRE Centre/discrimination argument was a new issue, that had not previously been raised by the appellants. He further submitted, in light of the judgment in Rexhaj, the decision of the FtT should be set aside and the appeal dismissed outright.
7. Ms Dirie, on behalf of the appellants, submitted that the discrimination argument could not have been raised by the appellants at an earlier stage, as the Court of Appeal’s decision in Rexhaj changed the way in which this issue had previously been interpreted.
8. Ms Dirie was neutral as to whether the matter should be listed for remaking in the Upper Tribunal or be remitted to the FtT.
9. I am satisfied that that concession made by the appellants, in light of the Court of Appeal’s judgement in Rexhaj, is properly made; the appellants’ applications were made after the cut-off date (this was not in dispute) and as such the appellants were required to demonstrate dependency. The judge therefore erred in law in finding that the appellant’s’ dependency could be assumed. This was a material error of law, and I therefore set aside the decision of the FtT.
10. In relation, to the AIRE Centre/discrimination argument I have had regard to the principles in the case of Lata (FtT: principal controversial issues) [2023] UKUT 00163 (IAC). The discrimination argument was not raised at the FtT and is outside the scope of the issues raised in the appeal which is before this court. The appellants have not served a response which is compliant with Rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008. Mr Parvar was unaware that the discrimination argument was being raised until minutes before this hearing commenced. Accordingly, I do not permit a late application to be made under rule 24(1B)(a) and 24(1C) or the scope of this appeal to be widened to include the discrimination argument. In any event the discrimination argument is not an argument that the FtT could have determined and therefore does not come within the remit of an error of law.
Disposal
11. Having heard submissions, I considered whether the underlying appeal should be remitted to the FtT to be heard afresh or whether it should be retained in the Upper Tribunal to be remade.
12. The starting point is paragraph 7.2 of the Practice Statements of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal which provides:
“7.2. The Upper Tribunal is likely on each such occasion to proceed to remake the decision, instead of remitting the case to the First-tier Tribunal, unless the Upper Tribunal is satisfied that:
(a) the effect of the error has been to deprive a party before the First-tier Tribunal of a fair hearing or other opportunity for that party’s case to be put to and considered by the First-tier Tribunal; or
(b) 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.”
13. The issue in this appeal is a narrow issue and I am therefore satisfied that it can be remade in the Upper Tribunal.
Remaking
14. There was no evidence before the FtT, nor is there any before me, to demonstrate that the appellants are dependent on their sponsor. This is not an argument that has been advanced by the appellants. There has been no application pursuant to rule 15(2A) Tribunal Procedure (Upper Tribunal) Rules 2008 to adduce evidence capable of demonstrating dependency. I therefore dismiss both appellants’ underlying appeals.
Notice of Decision
15. The decision of the First-tier Tribunal involved a material error of law and is set aside.
16. I remake the decision and dismiss both appellants’ underlying appeals.

A. Gill

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

16 July 2025