Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case Nos: UI-2024-003465
UI-2024-003466

First-tier Tribunal Nos: EA/50551/2023
EA/00521/2024
EA/50552/2023
EA/00522/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 18th of September 2025

Before

UPPER TRIBUNAL JUDGE LOUGHRAN

Between

Primson Cecil Perera Bodiya Baduge (First Appellant)
Wannakuwatta Mitiwaduge Winifreeda Fernando (Second Appellant)
(NO ANONYMITY ORDER MADE)
Appellants
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Z Hussain, Counsel instructed by Zyba Law
For the Respondent: Ms N Kerr, Home Office Presenting Officer

Heard at Field House on 28 August 2025

DECISION AND REASONS
1. This is an appeal against the decision of First-tier Tribunal Judge Shukla (‘the judge’) promulgated on 29 May 2024 dismissing the appellants’ appeals against the refusal of their EUSS family permit applications.
Background
2. The appellants, citizens of Sri Lanka, applied to the respondent on 19 January 2023 for EUSS Family Permits, on the basis that they are the dependent parents of a relevant EEA citizen, namely their son Prageeth Aravinda Perera Bodiyabaduge (“the sponsor”).
3. The respondent refused the applications in decisions dated 27 March 2023. The appellants appealed against the decisions to the First-tier Tribunal.
The appeal to the First-tier Tribunal
4. The appeal came before the judge on 21 May 2024. The appellants were represented by Mr Gazzain and the respondent was represented by Ms Ofosu-Whyms. The Sponsor attended the hearing and gave evidence.
5. In a decision dated 29 May 2024, the judge found that the appellants had not established that the moneys they receive originate from the sponsor and that they had not established non-financial support they received from the sponsor meant that they were dependent on him.
6. The judge recorded that Mr Gazzain had submitted that the questions she asked during the hearing were outside her proper judicial remit. The judge noted that the questions she asked “were intended to elicit and clarify facts relevant to the issue of dependency, and specifically to help me understand the sponsor’s financial circumstances, and the bank statements before the tribunal,” that she had provided both representatives to ask questions arising from her questions and that she considered her questions were proper.
The appeal to the Upper Tribunal
7. The appellants applied for permission to appeal to the Upper Tribunal and permission to appeal was granted by First-tier Tribunal Judge Fisher on 15 July 2024.
8. The appellants submit that the judge erred in law and rely on the following grounds of appeal:
“Ground 1: The hearing before the judge was procedurally unfair because the judge departed from "her proper, supervisory, role" and improperly "descended into the arena” and getting involved in the evidence.
Ground 2: The judge erred by failing to make adequate findings and made perverse findings when assessing the dependency.”
The Hearing and Discussion
9. At the outset of the hearing, I informed Ms Kerr and Mr Hussain that I had been provided with and had listened to the audio recording of the hearing before the First tier Tribunal. Both representatives confirmed that they had not. It was agreed that the matter should be adjourned, so that they could do so.
10. When the hearing was reconvened, Ms Kerr informed me that having listened to the audio recording the respondent accepts that the hearing was procedurally unfair. Ms Kerr said that the respondent accepts the appellant’s description of the hearing at paragraphs 4 and 5 of the grounds which state:
“4. First, the FTTJ asked at least three times more questions to the Sponsor than the Respondent asked him in the cross examination. The FTTJ laid down of evidence at [12- 21] and the FTTJ’s finding at [25-29] is a result of FTTJ’s extensive questioning of the Sponsor, which the Respondent failed to put to the Sponsor in the cross examination or challenge the Sponsor during the course of the Respondent’s cross examination. It is submitted that the FTTJ essentially gave an opportunity to the Respondent to improve the Respondent’s case. The FTTJ’s questions to the Sponsor went beyond the way of clarification of evidence. This was brought to the FTTJ’s attention as recorded by the FTTJ at [33-34], by citing two case laws.
5. Second, the FTTJ at [26] held that the “Appellants could seek to rely on dependency on the Sponsor’s wife, although their witnesses were not presented this way”. The Respondent failed to put a challenge to the Sponsor in cross examination in relation to Sponsor’s wife or her being the true sponsor, instead, it was the FTTJ’s extensive questioning of the Sponsor that is the source of the finding at [26]. It is further submitted that it was procedurally unfair to make such a finding at [26] given the Respondent nowhere in the refusal letters or reviews raised this issue or put it to the Sponsor during the course of the cross examination. The Appellants were essentially deprived of an opportunity to address those issues raised by the FTTJ at [26] in relation to the Sponsor’s spouse.”
11. Ms Kerr confirmed that the respondent accepts that the judge’s questions to the sponsor went beyond clarification of evidence and that the appellants were deprived of an opportunity to address the issues raised by the judge. As a result, the respondent accepts that the hearing was procedurally unfair. Having listened to the recording I am satisfied that this concession was rightly made and that the judge’s decision should be set aside on the basis of procedural unfairness.
12. Having applied the guidance in paragraph 7 of the Senior President’s Practice Statement I am satisfied that because I have found that the judge’s decision should be set aside on the basis of procedural unfairness the appeal should be remitted to the First-tier Tribunal to be re-heard by a different judge. Both representatives agreed.
Notice of Decision
(1) There is an error of law in the decision of the First-tier Tribunal. Accordingly the decision of the First-tier Tribunal is set aside.
(2) The decision will be remitted to the First tier Tribunal to be heard by a different judge.
(3) No findings of fact are preserved.

G. Loughran
Judge of the Upper Tribunal
Immigration and Asylum Chamber

9 September 2025