Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-003378
First-tier Tribunal No: EU/54472/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 11 August 2025

Before

UPPER TRIBUNAL JUDGE O’CALLAGHAN

Between

GEDONI BEGUM
Appellant

and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Rule 34 Decision at Field House on 7 August 2025

DECISION AND REASONS
Introduction
1. This is an appeal by the respondent against the decision of First-tier Tribunal Judge Dieu (‘the Judge’), sent to the parties on 6 June 2024, allowing the appellant’s appeal under the EUSS.
2. Permission to appeal was granted by First-tier Tribunal Judge Fisher by a decision dated 19 July 2024. Judge Fisher reasoned, inter alia, that the Judge had erred in misconstruing the decision of the Upper Tribunal in Rexhaj (dependent parents: assumed dependency) [2023] UKUT 00161 (IAC), [2023] Imm AR 1407.
3. By a Notice and Directions dated 11 September 2024, Upper Tribunal Judge Owens observed that the Court of Appeal allowed the Secretary of State’s appeal in Secretary of State for the Home Department [2024] EWCA Civ 784, [2025] 1 WLR 63 and the decision of the Upper Tribunal in Rexhaj (dependent parents: assumed dependency) was reversed.
4. The Court of Appeal held in Rexhaj that a prior grant of leave to enter the United Kingdom pursuant to entry clearance under Appendix EU (Family Permit) (Appendix EUFP) does not exempt a person from demonstrating dependency when subsequently applying for leave to remain under the Immigration Rules Appendix EU (Appendix EU). Dependency is only assumed where an applicant had previously been granted leave to enter or remain before 1 July 2021 under Appendix EU, not Appendix EUFP.
5. Judge Owens observed that since the Judge “allowed the appeal on the basis of the ratio of the Upper Tribunal which has now been found to be wrong, I am minded to find that the grounds are made out, set aside the decision without a hearing and remit the appeal to the First-tier Tribunal for there to be consideration of the issue of dependency.”
6. The parties were directed to confirm in writing within 14 days as to whether they consented to the proposed course of action.
7. The respondent wrote to the Upper Tribunal on 17 September 2025 confirming consent to the proposed course of action and for the matter to be remitted to the First-tier Tribunal.
8. Unfortunately, there has been delay in the papers being placed before me. I understand the delay flows from the Upper Tribunal not receiving the appellant’s statement of position within the required 14-day timeframe. The appellant’s representatives, Kalam Solicitors, wrote to the Upper Tribunal on 7 May 2025 requesting an update. The representatives were informed by email on 14 May 2025 that no response to directions had been received from the appellant.
9. The representatives wrote to the Upper Tribunal on 17 June 2025 detailing, inter alia:
“We note that on 14 May 2025 we confirmed our position pursuant to paragraph 1(d) of the Tribunal’s directions issues on 11 September 2024, indicating our consent to the proposed disposal in the absence of a filed response. To date, however, we have not received any further update regarding the progression or determination of this appeal.”
10. I have been unable to locate an email from the representatives sent on 11 May 2025 that expressly confirms the appellant’s position in respect of Judge Owen’s directions. However, I am content that the email of 17 June 2025 sets out the appellant’s position in respect of set aside and remittal.
Rule 34 Decision
11. In considering whether to proceed under rule 34 of the Tribunal Procedure (Upper Tribunal) Rules 2008 I am mindful as to the circumstances when an oral hearing is to be held in order to comply with the common law duty of fairness and as to when a decision may appropriately be made consequent to a paper consideration: Osborn v The Parole Board [2013] UKSC 61; [2014] AC 1115 and JCWI v President of the Upper Tribunal (Immigration and Asylum Chamber) [2020] EWHC 3103 (Admin), at [6.1 - 6.14].
12. In the circumstances and being mindful of the importance of these proceedings to the appellant, the identified position of the parties, the expense to the parties of attending an oral hearing and the overriding objective that the Upper Tribunal deal with cases fairly and justly, I am satisfied that it is just and appropriate to proceed under rule 34.
Discussion
13. Having carefully considered the papers in this matter, I agree with the respondent that the Judge’s decision is affected by material error of law consequent to the ratio of the Court of Appeal in Rexhaj.
14. I observe the guidance in Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC). I am mindful that to date the issue of dependency has not to date been considered. In the circumstances, I consider it fair and just to remit this matter to the First-tier Tribunal.
Notice of Decision
15. The decision of the First-tier Tribunal sent to the parties on 6 June 2024 is set aside for material error of law, with no preserved findings of fact.
16. The appeal is remitted to the First-tier Tribunal sitting in Birmingham to be listed before any judge other than First-tier Tribunal Judge Dieu.

D O’Callaghan
Judge of the Upper Tribunal
Immigration and Asylum Chamber

7 August 2025