Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Case No: UI-2023-005652

First-tier Tribunal No:
EA/06934/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 9th December 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE FROOM

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

SHAHID RANA
(ANONYMITY ORDER not MADE)
Respondent

Representation:
For the Appellant: Mr A Chohan, Counsel, Direct Access
For the Respondent: Mr P Deller, Senior Home Office Presenting Officer

Heard on 5 December 2025 at Field House

DECISION AND REASONS
1. The Secretary of State appeals with the permission of the First-tier Tribunal against a decision, promulgated on 9 June 2023, of a Judge of the First-tier Tribunal sitting at Taylor House (“the judge”) allowing the appeal brought by Mr Shahid Rana, a citizen of Pakistan, against the decision, dated 21 March 2022, refusing his application under the EUSS as the family member of his cousin, Mr Asad Ali Syed, a Belgian citizen residing in the United Kingdom (“the sponsor”). The sponsor was granted settled status on 22 January 2020.
2. Although the appellant in this appeal is the Secretary of State, it is more convenient to refer to the parties as they were before the First-tier Tribunal. I shall therefore refer in this decision to Mr Rana as “the Appellant” and to the Secretary of State as “the Respondent”.
3. The First-tier Tribunal did not make an anonymity order and I saw no reason to do so.
The factual background and First-tier Tribunal decision
4. The Respondent’s decision, dated 21 March 2022, states that the Appellant did not meet the requirements of Appendix EU of the Immigration Rules because he had not provided sufficient evidence to confirm that he was a dependant of a relevant EEA citizen. The Appellant had not provided a valid family permit or residence card issued under the EEA Regulations as the dependent relative of an EEA citizen. This led to the application being refused under both paragraphs EU11 and EU14 of Appendix EU (settled and pre-settled status respectively).
5. At the hearing in the First-tier Tribunal on 2 June 2023, the Respondent did not field a presenting officer, and the oral evidence of the Appellant and the sponsor was unchallenged. The judge was satisfied that the Appellant was dependent on the sponsor and that the dependency had existed since the Appellant arrived in the United Kingdom in 2006 and before that when he was living in Pakistan. The judge also made a finding of fact that the Appellant had posted an application (on form EEA(EFM)) on 3 November 2020. He reasoned that the Appellant had “applied for the facilitation of his residence prior to the end of the transition period and his case therefore falls within the scope of the Withdrawal Agreement” [8]. The judge found the rules were not met because the Appellant did not hold a relevant document before the specified date [9]. However, he found the refusal of the application disproportionate [10]. The three factors which influenced this outcome were: (1) the Respondent did not take issue with any aspect of the EUSS application save for the absence of a relevant document; (2) at the time the EUSS application had been made, the definition of ‘dependent relative’ did not include a requirement for a relevant document; and (3) it was open to the Respondent to have considered both the Appellant’s applications simultaneously and it was highly likely that, had she done so, an EEA residence card would have been issued. On that basis he allowed the appeal. It appears he gave permission for the Appellant to rely on an unreported decision of the Upper Tribunal (UI-2022-001778), which involved “a very similar factual matrix”.
6. The Respondent appealed on the ground the decision contained a material misdirection in law, namely, that the Appellant fell within the personal scope of the Withdrawal Agreement. Under Article 10(1)(e) of the Withdrawal Agreement, beneficiaries are limited to those residing in accordance with EU law as of 31 December 2020. The Appellant did not fall within Article 10(3) because he had not made an application prior to the specified date. Reliance was placed on Batool and Ors (other family members: EU exit) [2022] UKUT 219 (IAC) for the proposition that an extended family member whose residence was not being facilitated before 11pm GMT on 31 December 2020 and who had not applied for facilitation before that time, cannot rely upon the Withdrawal Agreement to succeed in an appeal under the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020. The judge had also erred by finding that the Appellant’s application should have been considered under the EEA Regulations as well as under Appendix EU of the rules. Reliance was placed on Siddiqa (other family members: EU exit) [2022] UKUT 219 (IAC) for the proposition that there was no requirement in law for the Respondent to treat an application as a different kind of application.
7. Permission to appeal was granted in extremely broad terms. The Appellant has not filed a Rule 24 response. Mr Deller provide a skeleton argument in advance of the hearing, although in the event, he did not need to refer to it at the hearing.
The submissions
8. Mr Deller adopted a pragmatic approach. He acknowledged that there had been some confusion in the approach adopted by the decision-maker in this case, which had resulted in the First-tier Tribunal proceeding on a false basis. Mr Deller acknowledged that the Appellant had made an application under the Immigration (European Economic Area) Regulations 2016 (“the EEA Regulations”) and that he had been entitled to a decision under the EEA Regulations which, if negative, would have entitled to him to an appeal under Regulation 36 of the EEA Regulations. Instead, the Respondent had made an EUSS decision, which had led to the appeal. Mr Deller helpfully accepted that he could not continue to advance the Respondent’s case.
9. Mr Chohan agreed. There followed some discussion as to how to resolve the matter. One option would be for the Respondent to withdraw her decision, but the representatives preferred an alternative approach, which was to uphold the judge’s decision on the basis he had made the necessary factual findings to enable the Respondent to facilitate the Appellant’s residence as an extended family member.
Decision on error of law
10. If the Respondent does not withdraw her decision so as to bring the proceedings to an end, I must determine the appeal which is before the tribunal. Mr Deller having made clear that the Respondent did not any longer pursue her case as formulated in the grounds seeking permission to appeal or indeed in his skeleton argument, the door is open to my dismissing the appeal and upholding the First-tier Tribunal’s decision, albeit it was made under a false understanding of the underlying facts of the case. I intend no criticism of the judge in saying this. It was only clarified this morning that the wrong decision had been made by the Respondent and this error had somehow carried through into the appeal process.
11. This approach has the advantage of preserving the judge’s factual findings. As noted above, these included the relationship between the Appellant and the sponsor and the fact of the Appellant’s dependency on the sponsor throughout his lengthy residence in the United Kingdom and prior to that. Prio to Brexit, the sponsor resided in the United Kingdom as a result of exercising his Treaty rights as a Belgian citizen. On the basis of these findings, it is possible to say with certainty that, had a decision been made under the EEA Regulations, the Appellant would have satisfied the main requirements.
12. The EEA Regulations, when in force, read in relevant part as follows:

““Extended family member”
8.—(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 (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 to be a member of the EEA national’s household.
…

(6) In these Regulations, “relevant EEA national” means, in relation to an extended family member—
(a) referred to in paragraph (2), (3) or (4), the EEA national to whom the extended family member is related; …”
13. A tribunal arriving at the conclusion that the requirements of Regulation 8 are met can go no further. In line with Article 3(2) of the Citizens’ Rights Directive (2004/38/EC), the Respondent has a discretion whether to issue a residence card and obviously that has not occurred in this case: YB (EEA reg 17(4) - proper approach) Ivory Coast [2008] UKAIT 00062; Aladeselu & Ors (2006 Regs - reg 8) Nigeria [2011] UKUT 253 (IAC). It will be for the Respondent to exercise that discretion and to decide how to given effect to the findings made by the First-tier Tribunal, looking at them through the lens of the EEA Regulations.
14. The Respondent’s appeal is dismissed. The findings of fact made by the judge are preserved.
Notice of Decision
The appeal is dismissed. The decision of the First-tier Tribunal allowing the appeal shall stand.

Signed

N Froom
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

Date 5 December 2025