Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-001842
First-tier Tribunal No: EU/53333/2023

IA/00047/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

18th March 2025

Before

UPPER TRIBUNAL JUDGE LANE

Between

Taylor Elizabeth Cochrane
(NO ANONYMITY ORDER MADE)
Appellant
and

Entry Clearance Officer
Respondent

Representation:

For the Appellant: Mr Barr
For the Respondent: Ms Blackburn, Senior Presenting Officer

Heard at Royal Courts of Justice (Belfast) on 4 December 2024

DECISION AND REASONS
1. I shall refer to the appellant as ‘the respondent’ and to the respondent as ‘the appellant’ as they respectively appeared before the First-tier Tribunal. The appellant, whose date of birth is 20 October 1993, is a citizen of the United States of America. She appealed against the respondent’s decision dated 21 April 2023, refusing the appellant’s application dated 17 February 2023 for a family permit under Appendix EU (family permit). The First-tier Tribunal allowed the appeal. The respondent now appeals to the Upper Tribunal.
2. Before the First-tier Tribunal, the appellant claimed that she met the requirements of Appendix EU (family permit) because she is a dependent relative of her father-in-law, Francis Cornelius Cochrane, (the sponsor), who she claims is a ‘specified relevant person of Northern Ireland’.
3. The judge found that the sponsor is a dual national of Ireland and the United Kingdom [13]. At [15], the judge concluded: ‘because I have found that the sponsor is not an EEA national within the meaning of regulation 2(1) it follows that the caveat in sub-sub-paragraph (iii) to sub-paragraph (bb) requiring that he should reside in the UK in accordance with EEA regulations does not apply. The only remaining requirement of sub-sub-paragraph (iii) is that he should be in the UK. I am satisfied that this requirement is met at all relevant times. I therefore find that the sponsor meets the definition of a “specified relevant person of Northern Ireland”.
4. At the initial hearing at Belfast on 4 December 2024, I directed that the Tribunal would determine the appeal after the parties had filed and served written submissions. I am very grateful to Mr Barr and Ms Blackburn (and her colleague, Mr Deller) for their submissions which I have considered carefully before determining the appeal.
Ground 1
5. Ground 1 states:
The relevant route was available, as stated in the refusal letter, only to a family member, being one of the following: a spouse; civil partner; durable partner; child, grandchild or great-grandchild under 21; dependent child, grandchild or great- grandchild over 21; or dependent parent, grandparent or great-grandparent of a ‘relevant EEA citizen’ or of their spouse or civil partner. Ms Cochrane is none of these - she is the spouse of the child of her sponsor, a daughter in law.. It was suggested that part of the relevant rule allowed a simple “relative” to be eligible but that was in a category with additional requirements. It is also not an issue that the application was considered as a family member of a relevant EEA Citizen, because a Dependent Relative of a Specified Relevant Person of Northern Ireland is category (6) in the definition of family member of a relevant EEA National. Judge Rea has thus allowed the appeal on a misapplication of the relevant law and contrary to a matter clearly raised in the Reasons for Refusal letter.
6. I find that Ground 1 is made out for the following reasons.
7. First, the appellant relies in her application for a EUSS Family Permit upon being the ‘family member of a relevant EEA citizen’. A ‘family member of a relevant EEA citizen’ is defined, for the purposes of this appeal, as: ‘a person who has satisfied the entry clearance officer, including by the required evidence of family relationship, that they are: (g) the dependent relative of a specified relevant person of Northern Ireland.’ Annex 1 to AxEU(FP) provides that ‘a dependent relative of a specified relevant person of Northern Ireland’ is: (a) (i) a relative (other than a spouse, civil partner, durable partner, child or dependent parent) of a specified relevant person of Northern Ireland or of their spouse or civil partner; and (ii) is a dependant of a specified relevant person of Northern Ireland or of their spouse or civil partner, a member of their household or in strict need of their personal care on serious health grounds.’ The definition of a ‘‘specified relevant person of Northern Ireland’ is at Annex 1 to AxEU(FP):
(a) the person is a relevant person of Northern Ireland in accordance with sub-paragraph (a)(i) or (a)(iii) of that entry in this table; and
(b) the applicant is a non-EEA citizen; and
(c)(i)(aa) the applicant meets the definition of ‘joining family member of a relevant sponsor’ in Annex 1 to Appendix EU to these Rules where the person is their relevant sponsor; and
(bb) the applicant has satisfied the entry clearance officer by relevant information or evidence provided with the application that, due to compelling practical or compassionate reasons, it was not possible for the person to return to the UK before the specified date while the applicant remained outside the UK; or
(ii)(aa) the applicant is a dependent relative of a specified relevant person of Northern Ireland; and
(bb) the person:
(i) is outside the UK; or
(ii) is in the UK and has been so for a period not exceeding three months; or
(iii) is in the UK and (were they an “EEA national” in accordance with regulation 2(1) of the EEA Regulations) they were residing in the UK in accordance with the EEA Regulations on 30 June 2021.
8. The only ground on which the appellant appealed to the First-tier Tribunal was that she met the requirements of the Rules as ‘a ‘dependent relative of a specified relevant person of Northern Ireland’, as defined in Annex 1 to AxEU(FP). A ‘dependent relative of a specified relevant person of Northern Ireland’ under Annex 1 to AxEU(FP), must be ‘‘a relative (other than a spouse, civil partner, durable partner, child or dependent parent) of a specified relevant person of Northern Ireland or of their spouse or civil partner’. At [3], the judge wrote: ‘It is not disputed that the appellant is married to the sponsor’s son and that she is therefore the daughter-in-law of the sponsor. It is also not disputed that she is therefore a relative of the sponsor within the meaning of the Rules’. There are no details of any concession by the respondent (in his written submissions, Mr Barr, who appeared before the First-tier Tribunal, does not refer to any concession by the presenting officer), which might explain why the judge recorded that ‘there was no dispute’ as to matters which the respondent now asserts before the Upper Tribunal was and remains contentious. The respondent submits that the appellant is not the sponsor, Mr Cochrane’s, relative at all but, a member of the sponsor’s son’s family. I agree with that submission which accords with my understanding of the position had the application been made under the EEA Regulations 2016 which the regulations with which this appeal is concerned both parties agree are intended to mirror.
9. Secondly, even if the appellant were the relevant of the sponsor, she would need to prove that she was a ‘a dependant of a specified relevant person of Northern Ireland or of their spouse or civil partner, a member of their household or in strict need of their personal care on serious health grounds’. A question therefore arises as to whether the appellant is a member of the sponsor’s household. The appellant states in her application form that the sponsor has been resident in the United Kingdom since 1959 whilst the appellant herself was resident outside the United Kingdom (had she been within the United Kingdom she would have applied under Appendix EU). The respondent, therefore, submits that the cannot prospectively be the member of a household so she is not a ‘dependent relative.’
10. Mr Barr submits that the appellant travelled to the Republic of Ireland to make the application ‘from abroad’ and has produced evidence that a valid application was made and accepted as such by the Entry Clearance Officer. Having made her application, the appellant returned home to the United Kingdom that evening. He also submits that the appellant has an outstanding application under the EUSS made in 2022.
11. I find that the appellant’s conduct is puzzling and disingenuous. By leaving the United Kingdom for a day to make her application, the appellant has sought to hide her true circumstances from the Entry Clearance Officer. She has sought (so she appeared to believe) to maximise her chances of gaining leave to enter by making two applications. I shall not speculate on her reasons for doing so although it seems possible that she considered that an application under AxEU(FP) might stand a better chance of success. In any event, the respondent’s submission that, as at the date of her application, the appellant was not a dependent relative of the sponsor (not a member of his household) is strictly speaking accurate. Having said that, I note Mr Barr’s submission that there appears to be no requirement that the appellant had to be resident abroad in the sense of living permanently out the United Kingdom when she made her application. However, I find that the appellant could not show that she a ‘relative’ of the sponsor for the reasons I give above at [8] and that finding is determinative of her appeal.
12. As regards the condition for financial dependence on the sponsor, the appellant has stated that she receives £0.01 per month from the sponsor. I accept Mr Barr’s submission that the appellant has not relied on this element of the rule and that she had to insert an amount of money in the application form as it would not accept a zero entry.
13. At [23] of his written submissions, Mr Deller writes: ‘. If the appellant is not Mr. Cochrane’s relative, or she has not demonstrated on the balance of probabilities that she is dependent on him (within the definition in AxEU(FP)), then she has not made out that she is the ‘dependent relative of a specified relevant person of Northern Ireland’ and the FtT should have dismissed her appeal.’ For the reasons I have given, I agree.
Ground 2
14. Ground 2 reads: ‘The Judge frequently imports concepts from the EEA Regulations which is impermissible where those regulations are not imported to the definition framework in Appendix EU (Family Permit). This includes using the Regulation 2(1) definition of EEA national, where the equivalent provision in Annex 1 to Appendix EU (Family Permit) plainly includes a relevant person of Northern Ireland as an EEA national. It was not open to the Judge to disregard this provision given that the sole available ground of appeal was that the decision was not in accordance with Appendix EU (Family Permit). If the provision was there it had to be met. The exercise of considering the application against the relevant rule was thus not done properly.’
15. Before the First-tier Tribunal, the parties agreed that the sponsor met the requirements of sub-paragraphs(a) –(b) of the definition of a ‘specified relevant person of Northern Ireland’. Sub-paragraph (c) (ii) (bb) remained in dispute. This provides that the appellant’s sponsor must be one of the following:
(i) outside the UK; or
(ii) in the UK and has been so for a period not exceeding three months; or
(iii) in the UK and (were they an “EEA national” in accordance with regulation 2(1) of the EEA Regulations) they were residing in the UK in accordance with the EEA Regulations on 30 June 2021
In seeking to resolve this issue, the judge fell onto legal error. The judge found that ‘the sponsor is not an EEA national in accordance with regulation 2(1)’ of the EEA Regulations) [14]. He then found that:
15. Because I have found that the sponsor is not an EEA national within the meaning of regulation 2(1) it follows that the caveat in sub-sub-paragraph (iii) to sub-paragraph (bb) requiring that he should reside in the UK in accordance with EEA regulations does not apply. The only remaining requirement of sub-sub-paragraph (iii) is that he should be in the UK. I am satisfied that this requirement is met at all relevant times.
The judge erred by finding that the full requirement of the rule should not apply. The rule makes it clear that only United Kingdom citizens can meet the definition of a ‘specified relevant person of Northern Ireland’ and that no British citizen can be an EEA national for the purposes of the EEA Regulations. The meaning of the rule is admittedly a little obscure but it can only mean (as the respondent submits) that the United Kingdom sponsor must be residing in the United Kingdom as if they were an EEA national as opposed to a British citizen as at 30 June 2021.
16. Mr Barr submits that the judge may have felt ‘that the sponsor was in a similar position to a British sponsor in a 'Surinder Singh' type case and hence the sponsor would not be required to be exercising treaty rights.’ That is a speculative observation and does not assist the appellant in any event. It seems that the judge simply misunderstood the rule. Mr Barr also submits that the error was not material as there was evidence Job Seeker’s Allowance, Tesco wage slips) in the bundle of documents before the First-tier Tribunal which showed that the sponsor was a worker who would meet the requirement to exercise Treaty Rights after more than3 months residence in the United Kingdom. The problem with that submission is that the judge wrongly disapplied the rule and did not consider the evidence on which the appellant now seeks to rely. I agree with Mr Deller that the judge misapplied the rule.
17. For the reasons I have given, I find that the judge erred in law such that his decision falls to be set aside. In the light of my finding above that the appellant is not the ‘relative’ of her proposed sponsor as defined by the relevant rule, I have remade the decision dismissing the appeal against the decision of the Entry Clearance Officer dated 21 April 2023.
Notice of Decision
The decision of the First-tier Tribunal is set aside. I have remade the decision. The appellant’s appeal against the decision of the Entry Clearance Officer dated 21 April 2023 is dismissed.

C. N. Lane

Judge of the Upper Tribunal
Immigration and Asylum Chamber

Dated: 28 February 2025