Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-001079

First-tier Tribunal No: EU/54528/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

30th April 2025

Before

UPPER TRIBUNAL JUDGE O’BRIEN
DEPUTY UPPER TRIBUNAL JUDGE FARRELLY

Between

MUHAMMED AYUB
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms K Stein, advocate
For the Respondent: Mr A Mullen, Senior Home Office Presenting Officer

Heard at Edinburgh Tribunal Centre on 12 February 2025

DECISION AND REASONS

1. The appellant appeals against the decision of First-tier Tribunal Judge Beg (‘the Judge’) dismissing his appeal against the respondent’s refusal to grant him leave to remain under the EUSS.

The Issues

2. Permission to appeal was granted by Upper Tribunal Judge McWilliam on the grounds that it was arguable that the Judge had failed to engage with the appellant’s evidence that he had made an application under the Immigration (European Economic Area) Regulations 2016 (‘the EEA Regulations’) which remained outstanding at the date of the First-tier Tribunal hearing. Judge McWilliam noted that, whilst a decision on the application had been uploaded onto the Tribunal’s reformed case management system (‘CCD’) before the hearing, it was arguable that the same had not been brought to the appellant's attention and that a failure to make findings on the point raised an arguable issue of fairness.

3. Before us, it was confirmed that the appellant relied on the sole ground set out in paragraph 7(g) of his grounds: that the Judge had failed to consider that he had made an application on 17 December 2020 under the EEA Regulations for a residence card as a family member of an EU citizen exercising Treaty rights in the United Kingdom.

4. Ms Stein accepted that service of the EEA residence card decision on the appellant’s representative constituted service on the appellant. Ms Stein also confirmed that she was not raising any arguments under the Withdrawal Agreement.

5. Mr Mullen’s argument in short was that the Judge, even if in error in overlooking the appellant’s application of 17 December 2020, would inevitably have come to the same conclusion. The application was unsuccessful; therefore, the appellant did not meet the relevant definition in Annex 1 and his residence was not being facilitated by the United Kingdom. Consequently, he was not entitled to status under the EUSS.

Consideration

6. It was the appellant’s evidence before the Judge that he had been dependent on his uncle, an Italian national, since 2012. He had applied on 17 December 2020 for an EEA residence card in that capacity but had not received a decision on that application. He had then applied under the EUSS whilst his EEA application had been outstanding. However, it had been refused on the basis that he did not have a relevant document. He argued that, as he had an extant application, he should be treated as if he had a residence card and should succeed in his appeal.

7. On 19 January 2024, 3 days before the hearing, the respondent uploaded to CCD a letter dated 26 January 2021 rejecting the appellant’s residence card application on the grounds that he had not submitted his passport or his sponsor’s passport or valid national identity card with the application.

8. The judge directed herself at [9] to Batool (other family members: EU exit) [2022] UKUT 00219 (IAC) and in particular the need for entry and residence to be (or be in the process of being) facilitated before 11pm on 31 December 2020 to succeed in an EUSS appeal, either under Appendix EU or the Withdrawal Agreement. Her consideration of facilitation can then be found at [10], in which she said:

‘Mr Chohan submitted that the appellant made an application for a residence card in 2017. I find however that his application was refused. There is no credible evidence before me that his entry and residence was facilitated by the United Kingdom before 31 December 2020, when the United Kingdom left the European Union. In evidence the appellant confirmed that he has never held a residence card.’

9. It is regrettable that Mr Chohan, the appellant’s own representative, failed to highlight the appellant's more recent EEA application, especially given that it was referred to in the appellant's own witness statement. However, it was still beholden to the Judge to consider it as a possibly relevant factor. The question nevertheless is whether a failure to do so was an error of law and, even if so, whether it was material omission.

10. The fact remains that there was evidence before the judge that the EEA application had been rejected on 26 January 2021 and so had not been successful, whether or not the appellant had been told that at the time. Given the judge’s finding that the appellant's evidence on other matters was ‘contradictory’ [19], she might well have rejected his claim not to have been aware of the 2021 decision; however, it matters not.

11. The appellant had applied under the EUSS as a family member of a relevant EEA citizen. Specifically, he relied in being a dependent relative of his sponsor (paragraph (e) of the definition of ‘family member of a relevant EEA citizen’ in Annex 1 to Appendix EU. However, the definition in that Annex of ‘dependent relative’ requires at paragraph (b) that:

(b) holds a relevant document as the dependent relative of their sponsoring person for the period of residence relied…; for the purposes of this provision, where the person applies for a relevant document (as described in sub-paragraph (a)(i)(aa) or (a)(ii) of that entry in this table) as the dependent relative of their sponsoring person before the specified date and their relevant document is issued on that basis after the specified date…they are deemed to have held the relevant document since immediately before the specified date

12. The appellant accepts that he has never held a residence card (or other relevant document). His application in 2017 was refused and was in any event applied for in a different capacity (as the unmarried partner of an EEA national). His 2020 application was rejected as invalid. Consequently, whilst he had an extant application as of 11pm on 31 December 2020, the residence card was never issued (on the basis applied for or otherwise) and so the appellant did not ever satisfy the definition of ‘dependent relative’ and thus was never entitled to leave under the EUSS as a family member of a relevant EEA citizen.

13. Consequently, the fact that the appellant had an extant residence card application as of 11pm on 31 December 2020 was by the date of the hearing irrelevant to the appeal, it having been unsuccessful. It was in any event an immaterial omission; dismissal of the appeal was inevitable.

14. We note in any event that no challenge has been made, or in any event pursued before us, to the Judge’s findings at [21] that the appellant was not dependent on his sponsor as required by paragraph (a)(bb) of the definition of ‘dependent relative’. The appeal would, therefore, have inevitably failed on that basis, irrespective of the Judge’s approach to the 2020 EEA application.

15. Finally, we deal briefly with the issue identified by Judge McWilliam of arguable unfairness arising from an alleged failure to bring the 2021 residence card refusal letter to the appellant’s attention. As Ms Stein properly accepted, service of that decision on the appellant's representatives constituted service on the appellant himself. The letter was uploaded to CCD 3 days before the hearing, and so was electronically served on the appellant’s representative at that point. Consequently, the appellant was given notice of the decision at least by then (if not before) and no arguable unfairness arose.

16. For these reasons, the appeal fails.

Notice of Decision

1. The decision of the First-tier Tribunal did not involve the making of an error of law, and so stands undisturbed.

Sean O’Brien

Judge of the Upper Tribunal
Immigration and Asylum Chamber

24 April 2025