Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2024-001113
First-tier Tribunal No: EU/50037/2023
LE/00232/2023
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 27 March 2026
Before
UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between
ANVAR AMINDJANOVICH NAVRUZOV
(NO ANONYMITY ORDER MADE)
Appellant
and

ENTRY CLEARANCE OFFICER
Respondent
Representation:
For the appellant: Mr A Maqsood, Counsel instructed by iConsult Immigration
For the respondent: Mr P Deller, Senior Presenting Officer

Heard at Field House on 23 March 2026
DECISION AND REASONS

Introduction
1. At times, the EUSS scheme appears to have the innate ability to cause confusion and legal headaches. The drafting of the Rules, together with regular amendments, can make it near-impossible to navigate a clear pathway through its provisions. I am certainly not the first to express that view.

2. The present case may be an example of the difficulties.

3. In this re-making decision I am adopting a pared-down approach. The parties are both well-aware of the prolonged history of the case, the various provisions of the Rules in play, and the evolving nature of the submissions made. If my decision is to be scrutinised in any onward appeal, no doubt all of the relevant source materials will be considered in detail. Suffice it to say that the resumed hearing before me involved a good deal of back-and-forth discussion and careful thought by the representatives. I have carefully considered everything that was said.

4. Before turning to my analysis, I want to say a word about the representatives, to whom I am very grateful for their assistance on the day. Mr Deller very candidly accepted some responsibility for the delay in reaching the final hearing and made his apologies for this. For my part, I make no criticism of him. Frankly, Mr Deller has over the course of time been a, if not the, best source of enlightenment (to the extent that that is possible in the context of the EUSS) to the Tribunal, and indeed his Senior Presenting Officer colleagues, in respect of the overall workings of the Rules. I would suggest that I am not alone in thinking that his task has not been made easier by the quality of drafting of the Rules and the seemingly unending and complicated nature of the changes to them over time. Further, I might speculate that Mr Deller has had to carry more than his fair burden of dealing with difficulties arising from the EUSS.

5. As result of the delays in this case and the consequent lack of funds on the appellant’s part, Mr Maqsood appeared before me on a pro bono basis. He is to be commended for this. He had put in conscientious work prior to the hearing and his contribution on the day was very helpful.

Background
6. The appellant is a citizen of Uzbekistan. On 30 June 2021, he made an application for a family permit under Appendix EU (Family Permit). This was refused by the respondent on 5 December 2022 (there appears to have been an identical refusal decision made on 20 October 2022, but nothing arises from this and the later decision corresponds with the relevant appeal deadlines and other materials).

7. In short, the appellant applied on the basis that he was a “family member of a relevant EEA citizen”, namely his ex-wife, Ms N, a French national. The couple had married in November 2007 and divorced on 27 May 2020. The appellant left the United Kingdom on 13 September 2020.

8. The respondent’s refusal was based on two grounds: that the appellant had failed to provide evidence that Ms N had settled or pre-settled status under the EUSS; that a previously issued residence card had been revoked in August 2015 on the basis that the marriage was one of convenience.

9. The appeal to the First-tier Tribunal was dismissed by a decision promulgated on 20 February 2024. The judge concluded that the respondent had failed to show that the marriage was one of convenience. However, he also found that the appellant had failed to demonstrate that Ms N had applied for settled or pre-settled status under the EUSS and this was fatal to the case.

The error of law stage
10. The onward appeal came before the Upper Tribunal on 11 August 2025. The respondent conceded that the First-tier Tribunal had erred in law on the basis that the judge had failed to address the question of whether Ms N would have been granted leave to remain under Appendix EU if valid applications had been made before 1 July 2021 and that such leave would not have lapsed or been cancelled, curtailed, revoked or invalidated before the date of application.

11. Mr Maqsood appeared at that hearing. He confirmed to me that the Senior Presenting Officer (not Mr Deller) had accepted that, save for the issue set out in the preceding paragraph, all other requirements of the Rules were met.

12. The error of law hearing was presided over by another Upper Tribunal Judge. Unfortunately, it appears as though no written decision was produced following the respondent’s concession. Neither I nor the parties could locate any reasoned decision, or a consent order. Neither party suggested that this omission affected my jurisdiction in terms of re-making the decision in the appellant’s appeal.

The respondent’s position following the error of law stage
13. Subsequent to the conceded error of law, Mr Deller took charge of the respondent’s position. In what is clearly a very carefully considered skeleton argument, he submitted that:

(a) The appellant could not succeed in respect of the Withdrawal Agreement because he had divorced Ms N in May 2020 and then left the United Kingdom in September of that year;

(b) Both the appellant and Ms N had acquired a permanent right of residence in the United Kingdom by virtue of exercising Treaty rights for a five-year block during the period 2007 to 2017;

(c) It was accepted that in principle the appellant had a route to obtaining a family permit on the basis of his permanent residence and the need to consider whether a hypothetical application made before 1 July 2021 would have been successful. It was accepted that this route could apply for persons such as the applicant, who was relying on a retained right of residence;

(d) In respect of Ms N, again, a hypothetical application made after 10 March 2019 (when the EUSS opened) would have succeeded provided she had been resident in the United Kingdom. There was a shortage of evidence to establish the fact of residence;

(e) Subject to the fact of Ms N’s residence, it was accepted that both hypothetical applications would have succeeded;

(f) However, the appellant’s appeal should be dismissed because, as at the date of application, it could not properly be said that the appellant would have been “accompanying” Ms N to the United Kingdom or “joining” her here within 6 months of the date of application, with reference to paragraph FP6(1)(c) and (d) of Appendix EU (Family Permit).

The appellant’s position in response
14. In a helpful skeleton argument, Mr Maqsood responded to (f), above, in the following way. Given that the respondent accepted that, in principle, the Rules permitted a person in the appellant’s position to obtain a family permit, it made no sense for that possibility to be entirely ruled out by a narrow interpretation of paragraph FP6. It was obvious that a person relying on a retained right of residence and having made an application from abroad (i.e. someone who had divorced their EEA citizen partner and was no longer in the United Kingdom) would not be coming to the United Kingdom to continue a subsisting relationship with that EEA citizen. Therefore, the words “accompanying” and, more particularly, “joining” in paragraph FP6 should be construed as having a wider meaning. Specifically, provided the EEA citizen was in the United Kingdom, the appellant’s entry would be to “join” them here, albeit not in the context of a relationship.

The hearing
15. Notwithstanding the evolution of the respondent’s position over time, Mr Maqsood was content to proceed. During the course of the hearing, matters evolved yet further. Both representatives engaged with each other’s positions and I did not deem it appropriate to either adjourn or seek post-hearing written submissions.

Findings of fact
16. Having regard to the evidence as a whole, I find that it is more likely than not that Ms N was in fact resident in the United Kingdom after 2017. The evidence is certainly not conclusive, but there is an off by way of her employment history and registration with HMRC, together with her lengthy previous residence in this country for me to make a positive finding.

Conclusions
17. The following conclusions are based on the two grounds of appeal available to the appellant in this case, pursuant to the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020: that the respondent’s decision breached any rights under the Withdrawal Agreement; that decision was not in accordance with the EUSS Scheme, as provided for within the Rules.

18. Step 1. The appellant cannot succeed with reference to the Withdrawal Agreement. That is because he does not fall within the scope of Article 10(1)(e) of the Agreement: respondent’s skeleton argument at [5]. That much is accepted by the appellant.

19. Step 2. The respondent’s refusal decision of 5 December 2022 is flawed, as accepted by the respondent. That is because it failed to have regard to the possibility of hypothetical applications being successful: respondent’s skeleton argument at [7].

20. Step 3. The respondent accepts, and I agree, that the applicant did have a route open to him for a family permit, namely via a hypothetical application made before 1 July 2021: respondent’s skeleton argument at [9]. Ms N also had a route open to her in respect of settled status via a hypothetical application: respondent’s skeleton argument at [9]. The respondent accepts that, subject to what is said below, the hypothetical applications would have succeeded: respondent’s skeleton argument at [10].

21. Step 4. All other things being equal, the eligibility requirements for the issuing of a family permit were based on the appellant’s circumstances as at the date of his application of 30 June 2021.

22. Step 5. FP6(1)(c) is met because, on my findings of fact, Ms N was probably resident in the United Kingdom as at the date of application and date of decision. Although, given what I say in respect of Step 7, below, this finding is rendered immaterial.

23. Step 6. As at the date of application, at first glance FP6(1)(d) would have presented difficulties for the appellant because my interpretation of the words “accompanying” and “joining” would be that they implied the need for him to have been in a subsisting relationship with Ms N. That reading of the words was urged upon me by Mr Deller and would appear to be the natural and ordinary meaning seen in the context of the overall provisions of FP6. I record here that the question of whether the appellant met the eligibility requirements for a travel permit was not canvassed before me.

24. Step 7. However, as the relevant definitions contained within Annex 1 of Appendix EU (Family Permit) were examined at the hearing, it became apparent that there had been a change to the definition of “family member of a relevant EEA citizen” between the date of application and the respondent’s decision (the precise Statement of Changes containing the change was not addressed).

25. The relevant change relates to paragraph (f) of the definition:

“(f) a person who the entry clearance officer is satisfied by evidence provided by the person that they would, if they had made a valid application under Appendix EU to these Rules before 1 July 2021, have been granted (as the case may be) indefinite leave to enter under paragraph EU2 of that Appendix or limited leave to enter under paragraph EU3 and that leave would not have lapsed or been cancelled, curtailed, revoked or invalidated before the date of application under this Appendix (and, in respect of that application, the requirements in paragraph FP6(1)(c) and (d) of this Appendix do not apply):
(i) as a family member who has retained the right of
residence by virtue of a relationship with a relevant
EEA citizen (as defined in Annex 1 to Appendix EU);
or
(ii) on the basis that condition 6 of paragraph EU11
of Appendix EU is met, or
…”
[Emphasis added]

26. On the face of it, the change has the effect of disapplying the requirements under FP6(1)(c) and (d) (EEA citizens residence and the need for an individual to be “accompanying” or “joining” the EEA national), the latter being the particular provision which presented the appellant with a problem. Mr Deller submitted that the change would only apply to applications made from the date of the change onwards and did not affect the applicant’s case.

27. Mr Maqsood submitted that the usual approach to decisions based on the application of the Rules should apply, namely that it was the Rules in place as at the date of decision which would determine the success or otherwise of an application. He also submitted that the change made good sense: it removed the odd situation in which a potential route was available to an individual in the appellant’s situation (as accepted by the respondent), yet the route was at the same time precluded if the words “accompanying” and/or “joining” required them to be in a subsisting relationship with the relevant EEA citizen.

28. I prefer Mr Maqsood’s position. It is the Rules as they stood at the date of decision which are relevant. On the express words used within the brackets in the definition at (f), it is clear that the relevant provisions within FP6 were to be disapplied. That is so notwithstanding the “date of application” stipulation in FP6. The change did not affect all other requirements, but simply disapplied (did not delete) two specific requirements. In addition, the change does make sense, as contended by Mr Maqsood.

29. Step 8. It follows from the above that the appellant met the requirements for the issuing of a family permit and the appeal is accordingly allowed.

Anonymity
30. There is clearly no basis for making an anonymity direction in this case.

Notice of Decision
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law and that decision has been set aside.

The decision in this appeal is re-made and the appeal is allowed under the Immigration (Citizens’ Appeal Rights) (EU Exit) Regulations 2020.

H Norton-Taylor
Judge of the Upper Tribunal
Immigration and Asylum Chamber
Dated: 24 March 2026