Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005048
UI-2024-005049

First-tier Tribunal No: EA/01763/2023
EA/01764/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 28 April 2025

Before

UPPER TRIBUNAL JUDGE HANSON
UPPER TRIBUNAL JUDGE REEDS

Between

SABA WASEEM
PERNIAN WASEEM
(NO ANONYMITY ORDER MADE)
Appellants
and

SECRETARTY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants: Mr A Maqsood of Counsel.
For the Respondent: Mr J Thompson, a Senior Home Office Presenting Officer.

Heard at Phoenix House (Bradford) on 24 March 2025

DECISION AND REASONS

1. The First Appellant, a female citizen of Pakistan born on 25 July 1991, is the mother of the Second Appellant, also a citizen of Pakistan, who was born on 28 November 2018.

2. The First appellant applied under the EU Settlement Scheme as the family member of a qualifying British citizen. That application was refused on 22 September 2022 for the following reasons:

You have stated that the qualifying British citizen resided in Ireland between 2014 – 2018 where he was self-employed.

Furthermore, to qualify under the EU Settlement Scheme as a family member of a qualifying British citizen, you also need to show that you resided in the EEA country with the qualifying British citizen while the qualifying British citizen exercised free movement rights as an employed person, self-employed person, self-sufficient person or student or held a right of permanent residence there under EU law.

As a family member of a qualifying British citizen, you need to show that you had the status of ‘family member’ or ‘extended family member’ during all or part of your joint residents with the qualifying British citizen in the EEA host country. You state that you were a dependent relative of a qualifying British citizen during the period of residence in Ireland but there is a lack of evidence confirming this.

In order to obtain further evidence regarding your application we tried contacting you multiple times by email, telephone and text message between 30 June 2022 and 14 July 2022, but this has not been provided.

It is noted that you have confirmed in your application form (section 6.1) that you did not reside in the EEA host country (Ireland) with the qualifying British citizen. Furthermore, Home Office records have also shown that in 2020 you applied from Pakistan (where you are residing) for UK entry clearance in order to join your sponsor in the UK.

Therefore, based on the information available, you did not meet the requirements for settled status or pre-settled status a family member of a qualifying British citizen.

It is considered that the information available does not show that you meet the eligibility requirements for settled status set out in rule EU 12 of Appendix EU to the Immigration Rules or those for pre-settled status are set out in condition 2 rule EU 14 of that Appendix. Therefore, you have been refused settled status and pre-settled status under rule EU 6.

3. In relation to the Second Appellant, her application under the EU Settlement Scheme as a family member of a qualifying British citizen was refused on the 22 September 2022 on the basis she had stated she was a dependent relative of a qualifying British citizen for all or part of their joint residence in Ireland, but had not provided any evidence to confirm that. It is stated the Second Appellant did not meet the requirements for settled status or pre-settled status as a family member of a qualifying British citizen.

4. There are also within the Appellants’ appeal bundle refusals of EEA family permits dated 28 February 2020 for both Appellants.

5. That in respect of the First Appellant records that she made an application to join a Mr Mohammed Asif Iqbal in the United Kingdom, who is a British citizen, as an extended family member of the British citizen based on the Surinder Singh judgement.

6. The Entry Clearance Officer (ECO) noted that in order to satisfy the requirements of the Surinder Singh judgement, under regulation 9 of the Immigration (EEA) Regulation 2016, the following conditions have to be met:

9(1) if the conditions in paragraph (2) are satisfied, these Regulations apply to a person who is the family member (“F”) of a British citizen (“BC”) as though the BC were and EEA national.

9(2) The conditions are that –

(a) BC –

(i) is residing in an EEA State as a worker, self-employed person, self-sufficient person or a student, or so resided immediately before returning to the United Kingdom: or
(ii) has acquired the right of permanent residence in an EEA State;

(b) F and BC resided together in the EEA State; and
(c) F and BC’s residence in the EEA State was genuine.

7. The ECO was not satisfied the requirements of regulation 9 were satisfied as the First Appellant had only provided two money transfers in her name dated December 2019, and that although she had provided evidence of money transfers being sent to a Parvez Iqbal, there was no evidence to show that she cohabited with this person. It was also found the First Appellant had failed to provide details of her and her family circumstances to show that without the financial support of Mohammed Asif Iqbal her essential living needs could not be met. It was therefore found the First Appellant had not established that she is dependent upon her sponsor as claimed, leading to the application being refused by reference to the requirements of regulation 9(2) of the 2016 Regulations.

8. In relation to the Second Appellant, it was noted an application had been made to join Mohammed Asif Iqbal in the United Kingdom who was a British citizen, as an extended family member in accordance with the Surinder Singh judgement.

9. The ECO refused the application in similar terms to those of the refusal of the First Appellant.

10. Both Appellants exercised their right of appeal to the First-tier Tribunal which were given case numbers EA/02997/2020 and EA/02998/2020.

11. There is also in the bundle a document headed “Notice of Withdrawal” dated 30 March 2021 [p65] containing the following text:

5. The appellant has consented to their appeal being withdrawn following the decision of the respondent to withdrawal the underlying decision. The Tribunal is satisfied that the consent was given freely and with full knowledge of the consequences because –

a. Consent was properly given in light of the reasons provided by the respondent withdrawing the underlying decision.
b. And if represented; the consent was given with the benefit of legal advice.

12. As a result of reconsidering the decision of the ECO, and the withdrawal of the appeals, on 8 June 2021 the Appellants were issued with EEA Family Permits to join the sponsor, valid until 30 June 2021 under the Surinder Singh route. They arrived in the UK on 29 June 2021, joined their Sponsor, and on 30 June 2021 made the EUSS applications under the Surinder Singh route to get pre-settled status. These are the applications which were refused on 22 September 2022, as noted above. Waseem Iqbal was granted pre-settled status on 21 July 2022.

13. The First Appellant had married Waseem Iqbal in Pakistan on 31 March 2017 and they are the biological parents of the Second Appellant, their daughter, who was born in Pakistan. He is not subject of this appeal.
14. The Appellants’ appeals against the recent refusals came before a judge of the First-tier Tribunal (the Judge’) on the 22 August 2024 at Bradford. In a determination promulgated on 3 September 2024 the Judge dismissed both appeals for the following reasons:

My Findings

15. Mohammed Asif Iqbal lived in Ireland exercising treaty rights until 23 April 2018 as a self-employed person. He was a qualifying British citizen as defined in the Appeal Number: EA/01763/2023 EA/01764/2023 4 Immigration Rules. The Appellants have never lived in Ireland. They have therefore never been part of Mohammed Asif Iqbal’s family in Ireland. They did not therefore have joint residence there. The fact that the Respondent issued visas stating “EEA FP Family member to join MA Iqbal” does not mean that regulation 9(2)(b) of the 2016 EEA Regulations was met. Therefore EU Rule 14(b) was not met. The Respondent is not estopped from relying on the EU rules as they are met or not, and in this case they were not.

16. They do not therefore meet the requirements of the Immigration Rules.

15. The Appellants’ sought permission to appeal to the Upper Tribunal asserting the First-tier Tribunal’s assessment at [15] was inadequate and did not deal with the construction of the relevant rule. It is contended that the Appellants’ skeleton argument before the First-tier Tribunal raised one point, namely the proper construction of EU14. The Grounds assert the First-tier Tribunal materially misdirected himself in interpreting paragraph EU 14(b) of Appendix EU on the basis it is not disputed the Appellants’ entry clearance visa is dated 29th of July 2021 and an endorsement in their passports states “EEA FP Family member to join MA Iqbal”). The Appellants argue this established that they held permits under the Regulations as opposed to under Appendix EU (Family Permit), on which they travelled to the UK in June 2021 before their visas expired. The Grounds argue it is not disputed they entered the UK on 29 July 2021 using the EEA family permits and were not illegal entrants. The Grounds assert that it is not disputed they made the application under Appendix EU the following day and that the First-tier Tribunal erred in law in misunderstanding EU 14(b) as requiring an assessment in the case of whether the Appellants’ lived in Ireland or not, when in this case the issue requiring assessment was whether the Appellants were “lawfully resident by virtue of regulation 9(1) to (6) of the EEA Regulations”.

16. The Appellants assert that instead of making an assessment of whether the Appellants were “lawfully resident by virtue of regulation 9 (1) to (6) of the EEA Regulations” the Judge went ahead to determine whether or not the Appellants’ were present in Ireland in the past. The Appellants argue that the Judge’s finding is a finding the Appellants are in the UK unlawfully, retrospectively. It is submitted that if the Judge is correct in finding the Appellants are not here lawfully under regulation 9 of the 2016 Regulations, it raises the question of the capacity in which the Appellants’ entered the UK.

17. The Appellants submit that if the First-tier Tribunal Judge did not err in law, it raised an issue of assessing whether family permits or residence card issued to ‘extended family members’ by error were valid permits/cards enabling lawful entry and residence on them. The Appellant’s case is they because they were valid, notwithstanding any error, the Appellants are here lawfully under regulation 9 of the EEA Regulations, notwithstanding the absence of previous residence in Ireland.

18. Permission to appeal was granted by another judge of the First-tier Tribunal on the basis the Grounds were arguable.
19. The appeal is opposed by the Secretary of State in a Rule 24 reply dated the 24 November 2024, written by Peter Deller, the operative part of which is in the following terms:

2. The respondent opposes the appellant’s appeal. In summary, the respondent will submit inter alia that the judge of the First-tier Tribunal directed himself appropriately. Judge Saffer correctly noted that the fact that the appellants had not resided with their claimed Qualifying British Citizen in Ireland meant that they could not meet the relevant definition in Appendix EU as they did not meet the requirements of regulation 9(2) of the 2016 Regulations. This was a plain requirement to be a “family member of a qualifying British citizen.

3. The appellants seek to rely on the unfortunate factor of their having previously been issued with EEA Family Permits on a concession made in the mistaken belief that the sponsor’s exercise of Treaty rights was the only issue in dispute. This cannot avail them in this appeal – the incorrectlyissues EEA Family Permits create no question of issue estoppel as no such ground of appeal is available under the Citizens’ Rights Appeals Regulations 2020. An appeal could succeed only if the decision was not in accordance with applicable Scheme rules (i.e Appendix EU) or if rights under the Withdrawal Agreements were breached. No such rights were held and the rule was not met as Judge Saffer sets out.

20. The appeal comes before us today for the Upper Tribunal to decide whether the Judge made an error of law material to the decision to dismiss the appeal.

The Law

21. The starting point is the right of free movement of Union citizens, which is enshrined in the Treaty for the Functioning of the European Union (TFEU) and other EU Treaties. Rights of free movement between European Union Member States in the European Economic Area (EEA) were outlined in the Citizens' Rights Directive (2004/EC/38). Article 3 made clear that the Directive applied to Union citizens 'who move to or reside in a Member State other than that of which they a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.'

22. The EEA Regulations 2016 was a statutory instrument that transposed the requirements of EU law into domestic law. If aspects of the EEA Regulations 2016 did not conform with EU law, the Directive had direct effect and was a primary source of EU law rights: see Marleasing S.A v LA Commercial Internacional de Alimentacion S.A. [1992] 1 CMLR 305. However, recital 29 of the Directive made clear that nothing in the Directive would affect more favourable national provisions. In other words, national provisions had to be read to conform with minimum requirements of EU law, but a Member State could make more generous provisions in domestic law if it decided to do so.

23. Until 31 December 2020 British citizens were Union citizens with rights of free movement under the EU Treaties.

24. The reference to the case of Surinder Singh in the refusal and pleadings as a reference to the decision of the European Court of Justice in The Queen v Immigration Appeal Tribunal et Surinder Singh, ex parte Secretary of State for the Home Department. (Freedom of movement of persons) [1992] EUECJ C-370/90 decided on 7 July 1992 in which the Court of Justice held:

THE COURT in answer to the question referred to it by the High Court of Justice (Queen' s Bench Division) by order of 19 October 1990, hereby rules:

Article 52 of the Treaty and Council Directive 73/148/EEC of 21 May 1973 on the abolition of restrictions on movement and residence within the Community for nationals of Member States with regard to establishment and the provision of services, properly construed, require a Member State to grant leave to enter and reside in its territory to the spouse, of whatever nationality, of a national of that State who has gone, with that spouse, to another Member State in order to work there as an employed person as envisaged by Article 48 of the Treaty and returns to establish himself or herself as envisaged by Article 52 of the Treaty in the State of which he or she is a national. A spouse must enjoy at least the same rights as would be granted to him or her under Community law if his or her spouse entered and resided in another Member State.

25. From 15 August 2019 until 31 December 2020 regulation 9 of the 2016 regulations provided that:

“9.— Family members [and extended family members of British citizens

(1) If the conditions in paragraph (2) are satisfied, these Regulations apply to a person who is the family member (“F”) of a British citizen (“BC”) as though the BC were an EEA national.

(1A) These Regulations apply to a person who is the extended family member ("EFM") of a BC as though the BC were an EEA national if—
(a) the conditions in paragraph (2) are satisfied; and
(b) the EFM was lawfully resident in the EEA State referred to in paragraph (2)(a)(i).

(2) The conditions are that—
(a) BC—
(i) is residing in an EEA State as a worker, self-employed person, selfsufficient person or a student, or so resided immediately before returning to the United Kingdom; or
(ii) has acquired the right of permanent residence in an EEA State;
(b) F [or EFM] and BC resided together in the EEA State; [...]
(c) F [or EFM] and BC's residence in the EEA State was genuine [;]
(d) either—
(i) F was a family member of BC during all or part of their joint residence in the EEA State;
(ii) F was an EFM of BC during all or part of their joint residence in the EEA State, during which time F was lawfully resident in the EEA State; or
(iii) EFM was an EFM of BC during all or part of their joint residence in the EEA State, during which time EFM was lawfully resident in the EEA State;
(e) genuine family life was created or strengthened during [F or EFM and BC's] joint residence in the EEA State [; and]
(f) the conditions in sub-paragraphs (a), (b) and (c) have been met concurrently.

Paragraph EU14 of Appendix EU provides :

“EU14. The applicant meets the eligibility requirements for limited leave to enter or remain where the Secretary of State is satisfied, including (where applicable) by the required evidence of family relationship, that, at the date of application, condition 1 or 2 set out in the following table is met:
...

(a) The applicant is: (i) a family member of a qualifying British citizen; or (ii) a family member who has retained the right of residence by virtue of a relationship with a qualifying British citizen; and

(b) The applicant was, for any period in which they were present in the UK as a family member of a qualifying British citizen relied upon under subparagraph

(c), lawfully resident by virtue of regulation 9(1) to (6) of the EEA Regulations (regardless of whether in the UK the qualifying British citizen was a qualified person under regulation 6 of the EEA Regulations); and (c) The applicant is not eligible for indefinite leave to enter or remain under paragraph EU12 of this Appendix solely because they have completed a continuous qualifying period in the UK of less than five years”

26. The Appellants’ specifically highlight in their representative’s skeleton argument regulation 9(2)(b) of the 2016 Regulations and EU14 (b) of Appendix EU.

27. A proper reading of regulation 9 of the 2016 Regulations shows it did not create or provide a discrete right to reside irrespective of whether a document had not been issued under regulation 9, but protected free movement rights for British citizen who may wish to work in another part of the EU, be joined by family member or a qualifying person, and then return to the UK bringing that person with them if they form part of the family unit. The basis of the decision of the Court of Justice is that if this right did not exist it may dissuade individuals from exercising their rights of free movement. This was remedied by the regulations treating a British citizen affected by the Surinder Singh judgement as if they were an EEA citizen, as clearly demonstrated by regulation 9(1) and 9(1)(A) for extended family members.

28. A proper reading of regulation 9 requires the British citizen to meet the requirements of regulation 9(2) and the family member/extended family member otherwise meeting the requirements of the regulation for a right of admission or residence to be documented under the relevant regulations.

29. The available grounds of appeal, in regulation 8 of the Citizens Rights Appeals Regulations (EU Exit) Regulations 2020 are:

8.— (1) An appeal under these Regulations must be brought on one or both of the following two grounds.

(2) The first ground of appeal is that the decision breaches any right which the appellant has by virtue of—
(a) Chapter 1, or Article 24(2), 24(3), 25(2) or 25(3)] of Chapter 2, of Title IIor Article 32(1)(b) of Title III, of Part 2 of the withdrawal agreement,
(b) Chapter 1, or Article 23(2), 23(3), 24(2) or 24(3)] of Chapter 2, of Title II, or Article 31(1)(b) of Title III,] of Part 2 of the EEA EFTA separation agreement, or
(c) Part 2, or Article 26a(1)(b), of the Swiss citizens' rights agreement.

(3) The second ground of appeal is that—
(a) where the decision is mentioned in regulation 3(1)(a) or (b) or 5, it is not in accordance with the provision of the immigration rules by virtue of which it was made;
(b) where the decision is mentioned in regulation 3(1)(c) or (d), it is not in accordance with residence scheme immigration rules;
(c) where the decision is mentioned in regulation 4, it is not in accordance with section 76(1) or (2) of the 2002 Act (as the case may be);
(d) where the decision is mentioned in regulation 6, it is not in accordance with section 3(5) or (6) of the 1971 Act (as the case may be).
(e) where the decision is mentioned in regulation 6A, 6B, 6C or 6D, it is not in accordance with regulation 9, 11, 12, 14, 15(1)(a) or 15(1)(c) of the 2020 Regulations (as the case may be);
(f) where the decision is mentioned in regulation 6E, it is not in accordance with section 3(5) or 3(6) of the 1971 Act, or regulation 15(1)(b) of the 2020 Regulations (as the case may be).
(g) where the decision is mentioned in regulation 6G(1)(a) or (1)(b) or 6H, it is not in accordance with the provision of the immigration rules by virtue of which it was made;
(h) where the decision is mentioned in regulation 6G(1)(c) or (1)(d), it is not made in accordance with Appendix S2;
(i) where the decision is mentioned in regulation 6I, it is not made in accordance with the provision of, or made under, the 1971 Act (including the immigration rules) by virtue of which it was made;
(j) where the decision is mentioned in regulation 6J, it is not in accordance with section 3(5) or (6) of the 1971 Act, or Appendix S2 (as the case may be).

(4) But this is subject to regulation 9.

Discussion and analysis

30. In his skeleton argument dated 8 February 2024, considered by us in addition to his skeleton argument dated 16 Match 2025, Mr Maqsood raised a further legal principle at [10] in which he wrote:

10. For interpreting EU 14 one must interpret Regulation 9(2) as it applies in a particular case. It is submitted that in the Appellants’ case for the purposes of EU 14 regulation 9 (2) (b) of the EEA regulations will be read together with para 2(1) a Schedule 6 of the Regulations whereby ‘living in Ireland’ requirement is taken to be accepted on 8 June 2021 when the Surinder Singh family permits were issued, notwithstanding the fact that the Appellants never lived in Ireland. On proper interpretation of EU 14 and Regulation 9(2) in the Appellants’ case, the Appellants were not required to have lived in Ireland. Further submissions will not be made at the hearing. The court, for the foregoing, is implored to allow the Appellant’s appeal accordingly.

31. Schedule 6 of the 2016 Regulations contains the transitional provisions following the revocation of the 2016 Regulations by the Immigration and Social Security Coordination (EU Withdrawal) Act 2020. Paragraph 2 reads:

Existing documents

2.—(1) An EEA family permit issued under regulation 12 of the 2006 Regulations before 1st February 2017 is to be treated as an EEA family permit issued under regulation 12 of these Regulations.

(2) Any document issued or treated as though issued under Part 3 of the 2006 Regulations is to be treated as though issued under Part 3 of these Regulations.

(3) Nothing in this paragraph extends the validity of any document issued under the 2006 Regulations beyond that document’s original period of validity.

32. Part 3 of the Regulations relates to residence documents but does not deal with the core issue in this case which is whether the family permit issued to Appellants in error has the effect of making it no longer a requirement for there to be an assessment of their ability to satisfy regulation 9, notwithstanding the same being a specific requirement of paragraph EU14.
33. We find no legal error in the conclusion of the Judge, when considering regulation 9, that on the facts neither Appellant is entitled to succeed on that basis, as it appears to be accepted by all parties that the Appellants applied as extended family members of the sponsor who had exercised his right to free movement in Ireland, but there had been no joint residence in Ireland between the Appellants’ and the sponsor whilst he was exercising his treaty rights.

34. It is conceded by the Secretary of State that it was not appreciated when the family permits were issued to the Appellants that the need for an applicant to establish joint residence in Ireland was as every bit as crucial to eligibility under regulation 9 (2) as the need of the British citizen to be exercising treaty rights, and that the withdrawal of the decision of 28 February 2020 and the issue of the family permits was wrong, and done in error, as the Appellants’ had no existing rights under the Surinder Singh principle, or any other provision of EU law, to be granted the same.

35. In relation to the submission by Mr Maqsood that the issue of the family permits amounted to issue estoppel on the question of joint residence and whether the Appellants’ situation brought them within the scope of these or other statutory grounds of appeal and appeal against refusal of leave under Appendix EU, the decision under appeal was one under regulation 3(1)(c) Citizens’ Rights Appeals Regulations 2020 which provides a right of appeal against a decision relating to leave to enter or remain in the United Kingdom made by virtue of residence scheme immigration rules not to grant any leave to enter or remain in the United Kingdom in response to a person’s relevant application.

36. We find on the facts that the relevant scheme rules were not met as the requirement for joint residence of the Appellants with the sponsor in Ireland was a material factor in meeting the definition of a ‘qualifying British citizen’.

37. Mr Maqsood relied on a number of authorities in support of his submission one of which was the recent decision of the Court of Appeal in Vasa v Secretary of State for the Home Department [2024] EWCA Civ 777 which is an appeal concerning two individuals who came to the UK and were permitted entry after immigration officers at the border erroneously stamp their passports with the words “Admitted to the United Kingdom under the Immigration (EEA) Regulations 2016”. Mr Maqsood submitted that the issues in that appeal concerning the nature and extent of the right granted by the immigration officer in each case and the relationship between those rights and the ability to apply for the new residence status recognised in the European Union Settlement Scheme (EUSS) contained in Appendix EU to the Immigration Rules, is relevant. Specific reference is made to the lead judgement given by Lord Justice Lewis, with whom Lady Justice Davies and Lord Justice Underhill agreed, to be found at [57 – 70] of the judgement, with particular emphasis being given to [58, 59, 67 – 69, and 70].

38. Mr Maqsood submits there is no reason why the same principle should not apply in the current appeal where family permits have been granted by an ECO under regulation 9, but that submission does not assist the Appellants. The Court of Appeal in Vasa held that the admission of the appellant’s in that case had been facilitated in accordance with Article 3.2 of Directive 2004/38/EC notwithstanding that the entry stamp relied upon was not an EEA family permit. The point being considered by the Court of Appeal was the Secretary of State’s submission relating to the lack of a relevant document as required by the Rules, i.e. a procedural rather than a substantive issue. We accept Mr Deller’s submission at [15] of his skeleton argument that in the current appeal the requirements of regulation 9 were not met as a result of a failure to satisfy a substantive requirement, as identified by the Judge. It was the fact that the requirement for relevant document was ousted by facilitation otherwise having happened in Vasa which brought the case within Article 10 (2) of the Withdrawal Agreement and not that the sponsor was not a “qualifying British citizen” as a result of failures to satisfy all the requirements of regulation 9 of the 2016 Regulations.

39. Mr Maqsood made detailed submissions to us relying upon the authorities bundle that was provided on the day of the hearing in support of his argument of issue estoppel. Mr Thompson indicated that he was happy for the same to be admitted and was in a position to make submissions in relation to the same.

40. In addition to R (Surinder Singh) and Vasa, the Appellants relied upon R v Secretary of State for the Home Department, Ex parte RAM ( no reference provided), R (on the application of Wang and another) v Secretary of State for the Home Department [2023] UKSC 21, Mahad v Entry Clearance Officer [2009] UKSC 16, R (on the application of Al-Siri) v Secretary of State for the Home Department [2021] EWCA Civ 113, Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2013] UKSC 46, and the recent decision of the Court of Appeal in R (on the application of Tomlinson) v Secretary of State for the Home Department [2025] EWCA Civ 253.

41. In his oral submissions Mr Maqsood submitted that the most relevant decision was that of Tomlinson (as cited). The issues in Tomlinson are noted at [27] of the judgement where four grounds of appeal to the Court of Appeal are set out, being:

Ground 1: Requiring Mr Tomlinson to make a fresh or further entry clearance application was unlawful or irrational.
Ground 2: The Respondent had failed to give effect to the FTT’s decision; it was unlawful or irrational to refuse entry in relation to the same conviction as was the subject of the revoked deportation order.
Ground 3: Alternatively, the Decision was oppressive.
Ground 4: The available right of appeal was not an adequate alternative remedy.

42. Mr Tomlinson succeeded on Grounds 2 and 4, although it proved to be a pyrrhic victory on the facts.

43. We find within the judgement of Lady Justice Falk, at [66], a useful summary of her review of the case law in the following terms:

66. I would draw the following conclusions from this review of the case law:
a) Lord Bridge's statement of principle in Thrasyvoulou is of general application. There is no reason in principle why it should not apply to decisions of statutory tribunals in immigration cases, and in particular to the FTT's jurisdiction to determine a human rights claim under s.82 of the NIAA.
b) As the discussion in Hackney and Munjaz shows, there may be particular difficulties in applying principles of res judicata in relation to matters decided in earlier judicial review proceedings. But neither this case, nor Lord Bridge's reference to cases where "where the statute has created a specific jurisdiction for the determination of any issue which establishes the existence of a legal right", is concerned with matters decided in earlier judicial review proceedings.
c) Issue estoppel requires an identity of issue. This will very commonly not be the case in an immigration context, because the relevant matter (such as a claim to asylum) is being assessed at a different time and in the light of the then prevailing circumstances. In those circumstances the Devaseelan guidance will apply. That guidance applies to the proper approach to facts and evidence which has been considered in an earlier decision, where the issue for determination in the later decision is different because it is being determined at a different time.
d) If, exceptionally, identical issues do arise between the same parties in successive appeals to the FTT, then in principle issue estoppel may apply, subject always to the "special circumstances" exception referred to in Arnold v NatWest and Virgin Atlantic.
e) Further, even where the issues are not identical, to the extent that facts are relied on that are "not materially different" from those put before the first adjudicator, they should be regarded as already settled under the Devaseelan guidance, for reasons of fairness that also underpin res judicata.
f) The fact that the earlier appeal to the FTT may have related to a different kind of decision of the Respondent (such as, in this case, whether to revoke a deportation order as opposed to whether to grant entry clearance) does not prevent issue estoppel if the same issue forms a necessary part of the decision-making in each case. This reflects the distinction between issue estoppel and cause of action estoppel.
g) Where, as here, a judicial review challenge is made on the basis of a failure by the Secretary of State to follow an earlier determination of an issue by the FTT, principles of issue estoppel can and should be applied by analogy, recognising that the complaint is about administrative action following earlier tribunal proceedings, rather than successive proceedings: TB (Jamaica) and Al-Siri, [ REF _Ref191752455 \r \h ]-[ REF _Ref191752582 \r \h ] above.
44. The Appellant’s case is that the Secretary of State was effectively stopped from refusing the applications on the basis of the earlier grant of the family permit. It is therefore a claim based upon estoppel by matter of record, which corresponds to res judicata estoppel.

45. Mr Maqsood submitted that by reference to the above principles as drawn from the relevant case law that paragraphs (a), (d) and (f) apply to this appeal. In essence he submits that in respect of (d) the respondent has not identified any “special circumstances “or any such circumstances for the appellants to rebut. Mr Maqsood submits that is not the case that there is any fresh evidence, and the respondent had the opportunity to raise the issue that the appellants had never resided in Ireland. The issue had been resolved by the issue of family permits and a such the respondent is now not able to go behind that finding of fact and law.

46. We have considered those submissions and in relation to this argument it must be remembered that res judicata is a decision given by a judge or tribunal with jurisdiction over the cause of action and the parties, which disposes, with finality, of a matter decided so that it cannot be re-litigated by those bound by the judgment, except on appeal.

47. The argument that the lack of joint residency in Ireland could not be taken in the refusal or decision under challenge, as it had been resolved by the issue of EEA family permits, does not have proper regard to the fact that there is no evidence of an abuse of process or failure to follow a binding decision of a court or tribunal, as was the case in Vasa, as no conclusion had been reached on the merits of the application for an EEA family permit by a competent court or tribunal as a result of the Secretary of State erroneously conceding the earlier appeal based upon a misunderstanding of the application of the relevant legal principles.

48. Mr Deller, who also drafted the Respondents skeleton argument, also submits that it is material that the present appeals have been considered in a different statutory context albeit that it is important to consider the issue of the Regulations as the First-tier Tribunal did in its determination.

49. It cannot be disputed that there was no ground of appeal such as “not in accordance with the law” such as to bring into play the legal principle relied upon by the Appellants’. The Appellants grounds of appeal were restricted to the two grounds referred to above in regulation 8 – see [29] above.

50. Our assessment is that the Appellants have failed to establish that any provision of the Withdrawal Agreement was breached on the facts.

51. In relation to the Appellant’s point based upon a proper interpretation of the relevant legal provisions, in support of which cases such as Wang are cited, the Regulations on their proper interpretation clearly required an applicant to satisfy all the relevant aspects of regulation 9 before a person was entitled for a grant of leave to enter or remain on the Surinder Singh route. Applying that normal interpretation, neither Appellant was able to succeed as they had not established that they had lived with their sponsor in Ireland whilst he was exercising treaty rights.

52. In our view, the proper interpretation of EU 14 requires an applicant to satisfy condition 2(b) that they were lawfully resident by virtue of regulation 9 (1) to (6) of the EEA Regulations, but they are not. There is no need for us consider the proper meaning of EU14, as it is clear and unambiguous in this regard.

53. The Appellants can only succeed with this argument if their submission that the fact that they were granted leave based on a misunderstanding of regulation 9 means it must be taken that they are accepted as having met these provisions, making the Judge’s examination of these points outside his jurisdiction.

54. The Appellants argue the text of regulation 9 is not reproduced in Appendix EU as the only requirement in Appendix EU is for the provision of regulation 9 of the 2016 Regulations to be satisfied, which the Appellants assert was evidenced by the grant of the family permit, meaning the decision under challenge is not in accordance with a residence scheme of the immigration rules.

55. Even if the requirement to show prior lawful residence in another Member State is not a requirement of EU law, as submitted by the Applicants on the basis of the decision of the Upper Tribunal in Kutbuddin & Ors (regulation 9, EEA Regulations, Lawful residence) India [2023] UKUT 76 (IAC), regulation 9 reflects the domestic law in relation to these issues.

56. In our assessment of the relevant legal principles, we consider that reference to the decision in Devaseelan unhelpful as this is not a case where a previous judicial finding has been made which forms a starting point of the consideration of a subsequent case.
57. We also find that the grant of the EU Family Permit was not as a result of an abuse of process or conscious exercise of discretion in the Appellants’ favour, notwithstanding the fact they cannot meet the requirements of regulation 9, it is simple case of case worker error in relation his or her understanding of the relevant test which, if the case worker had appreciated the need for both elements of regulation 9 to have been satisfied, the grant of a family permit would not have been made as neither Appellant was lawfully entitled to the same on the facts.

58. We find ignorance of the correct test by the case worker to be a legally relevant mistake which was a serious error as it purported to confer upon the Appellants legal status to which they were not lawfully entitled.

59. As Mr Deller submitted in his skeleton argument, the Appellants case that the issue of lack of joint residence could simply not be taken as it had been resolved by the incorrect issue of the EEA family permit, is contrary to trite principles of law.

60. Consequently, we reach the following conclusions:

(a) We therefore find no error of law in the Judge considering whether the Appellants had established that they could meet the requirements of regulation 9 of the 2016 regulations. That is a relevant consideration under EU14.
(b) We find no error of law in the finding of the Judge that on the facts they could not, as they had not resided in Ireland with the EU national whilst he was exercising treaty rights.
(c) We find no error of law in the Judge not finding in the Appellant’s favour on the basis of issue estoppel as no ground of appeal exists sufficient to allege one, and it is not made out the same is applicable on the facts.
(d) We find that despite the extensive reference to authorities by Mr Maqsood, he has failed to establish that the lack of joint residence could simply not be taken on the basis of the being resolved by the erroneous issue of the EEA family permits. We find it remained a live issue before the Judge.
(e) We find the Appellants have not established that they are able to meet the requirements of paragraph EU 14(b).
(f) We find on the facts the Appellants are not lawfully resident by virtue of regulation 9 (1) to (6) of the EEA Regulations.

61. Although the Judge’s findings are brief at [15], they did not need to be anything else. The Judge was aware of the two prongs of the Appellants appeals, namely in relation to regulation 9 and EU 14. It is not made out the Judge’s findings fall outside the range of those reasonably available to him on the evidence and an informed reader is clearly able to understand why the Judge came to the conclusion he did. On that basis his reasoning is adequate. In any event the Appellants have not succeeded in demonstrating that his decision involved the making of an error on a point of law in light of our assessment of the relevant legal principles to the facts of this appeal.

62. A person challenging a decision of Judge of the First-tier Tribunal must have regard to the guidance provided by the Court of Appeal in Volpi v Volpi [2022] EWA Civ 462 at [2], Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201 at [26], and Hamilton v Barrow and Others [2024] EWCA Civ 888 at [30-31]. We have done so and having considered all matters in the round do not find the Appellants have established that the Judges findings and conclusion on the appeal are rationally objectionable or contrary to the law.

63. On that basis we dismiss the appeal.

Notice of Decision

64. The First-tier Tribunal has not been shown to have materially erred in law. The decision shall stand.

C J Hanson

Judge of the Upper Tribunal
Immigration and Asylum Chamber

15 April 2025