Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005375

First-tier Tribunal No: EA/51747/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

12th May 2025

Before

UPPER TRIBUNAL JUDGE KEBEDE

Between

SAYED AHMAD QASIM HUSSAINI
(no anonymity order made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: In Person
For the Respondent: Ms S Lecointe, Senior Home Office Presenting Officer

Heard at Field House on 8 May 2025

DECISION AND REASONS
1. This is the re-making of the decision in the appellant’s appeal, following the setting aside of the decision of the First-tier Tribunal.
2. The appellant is a citizen of Afghanistan born on 30 April 1970. On 25 November 2020 he made an application, from Pakistan, for an EEA Family Permit under the Immigration (European Economic Area) Regulations 2016 (“EEA Regulations”), as the family member (dependent direct relative in the ascending line) of the sponsor, his father-in-law, Soltan Mohammad Mohebzadah, a Dutch national who had been residing in the UK since 30 April 2008 and had settled status. The appellant’s wife had been living with the sponsor, her father, since 5 September 2019, having been granted status under the EUSS as his direct descendent, and their three children also had settled status in the UK. The appellant’s application was refused on 6 April 2021 on the grounds that the respondent was not satisfied that the evidence he had produced showed that he was financially dependent upon the sponsor and that he had therefore not shown that he met the requirements of regulation 12 of the EEA Regulations. The appellant appealed against that decision on 25 April 2021.
3. In the meantime, on 6 April 2021, the appellant made a second application for an EEA Family Permit from Pakistan. On 4 May 2021 he was issued with an EEA Family Permit, valid until 30 June 2021. He arrived in the UK on 14 June 2021 to join his sponsor as well as his wife and three daughters and on 15 June 2021 he applied for leave to remain in the UK under the EUSS. On 3 December 2021 he withdrew his appeal against the refusal of his earlier application of 25 November 2020.
4. The appellant’s application under the EUSS was refused on 1 December 2021 on the grounds that he was not a family member in one of the categories falling under the definition of ‘joining family member of a relevant sponsor’ in Annex 1 to Appendix EU and, further, he had not provided sufficient evidence to confirm that he was a dependant relative of the sponsor. The respondent considered that the appellant therefore could not meet the requirements in rule EU11 or EU14 for settled status or pre-settled status under the EUSS. The appellant applied for an Administrative Review of the refusal decision on 1 December 2021, but the refusal was maintained by the respondent in an Administrative Review decision of 12 February 2024.
5. The appellant appealed against the decision of 1 December 2021 under the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020. He elected to have his appeal determined on the papers rather than by way of an oral hearing.
6. The appeal came before the First-tier Tribunal on 1 October 2024 and was dismissed in a decision promulgated on 3 October 2024. The First-tier Tribunal Judge considered that the appellant’s situation fell within the circumstances set out in Batool and others (other family members: EU exit) [2022] UKUT 00219 and that when he withdrew his appeal against the refusal of his application of 25 November 2020, that extinguished any entitlement he might have had under the EEA Regulations or the Withdrawal Agreement at that point as any facilitation of his entry and residence in the UK had not been applied for before 31 December 2020. The judge concluded that the appellant could not, therefore, bring himself within the definition of a joining family member of a relevant sponsor or as a family member of a relevant EEA citizen and that his appeal had to fail.
7. The appellant sought permission to appeal to the Upper Tribunal against the judge’s decision on four grounds. Firstly, that there was a legitimate expectation that he would be granted leave to remain after entering the UK, following the advice of the respondent upon the grant of the Family Permit, and that the judge had erred in law by ignoring that. Secondly, that the judge erred by failing to give weight to the reasons why the appellant had withdrawn his appeal. Thirdly, that the judge had disregarded the principle of ‘facilitation’ in accordance with the case of Vasa v Secretary of State for the Home Department [2024] EWCA Civ 777. Fourthly, that the judge had failed to consider his Article 8 claim.
8. Following a grant of permission to appeal to the Upper Tribunal, the matter came before me on 24 January 2025. At that hearing the appellant was represented through Direct Access by Mr Mustakim who provided written submission and also made oral submissions before me. The respondent was represented by Ms Cunha.
9. In a decision promulgated on 19 February 2025, I set aside the First-tier Tribunal’s decision, as follows:
“10. Having heard submissions from both parties I am inclined to accept that there were matters which were raised by the appellant in his grounds of appeal, which were not adequately considered by the judge. Although on its face the judge was right to conclude that the appellant’s Family Permit application, having been made under the EEA Regulations 2016 after the specified date of 31 December 2020, did not entitle him to any rights under the Withdrawal Agreement, in line with Batool [2022] UKUT 00219 at (1) of the headnote. However there were complications in the appellant’s case, in that he had been issued with an EEA Family Permit on the basis of that application, despite the fact that the EEA Regulations were no longer in force at the time he made his application and when apparently, therefore, there was no valid entitlement to such a document, and he had successfully entered the UK with that document. It appears that he was given misleading advice from the UKVI in that regard and about his ability to make an application under the EUSS once he entered the UK. It is unfortunate that the judge did not have the benefit of a presenting officer before her to address such arguments, given that the appellant had not requested an oral hearing of the appeal.
11. It is now argued by Mr Mustakim that, given the advice provided to the appellant and the issuing of the Family Permit, there was a legitimate expectation that the appellant be able to make an application under the EUSS, despite the nature of his relationship to the sponsor. That argument was not one made before the judge, at least not in such terms, given the lack of any legal representation. Neither was the case of Vasa [2024] EWCA Civ 777, as currently strongly relied upon by Mr Mustakim, put to the judge for her consideration, although I am inclined to conclude that the circumstances in that case were different given that the question of “facilitation” pre-dated 31 December 2020. However, I do consider that it was for the judge to make some findings on the history to the application and the impact that that ought to have had, if any, on the outcome.
12. Although both parties made their respective arguments at the hearing before me in relation to those matters, it would assist if I had properly formulated skeleton arguments addressing all these matters and addressing the decisions in Vasa and Rexhaj [2024] EWCA Civ 784, which may be of relevance to the matters in this case. It would be particularly helpful if the parties, in particular the respondent, would address the significance and validity of the EEA Family Permit issued on 4 May 2021 in terms of the appellant’s status in the UK.
13. It may well be that ultimately the same conclusion is reached as that of the First-tier Tribunal Judge. However, I consider that her decision is flawed by reason of a failure to address potentially material issues and it must therefore be set aside and re-made.
14. The appeal will therefore be listed for a resumed hearing in the Upper Tribunal on a date to be notified to the parties.”
10. The matter was then listed for a resumed hearing on 8 May 2025 for the decision to be re-made in the appeal.
Hearing for the Re-making of the Decision
11. The appellant did not produce any further documents for the resumed hearing, but relied upon the 131 page bundle produced for the error of law hearing and the written submissions of Mr Mustakim. Mr Peter Deller, on behalf of the respondent, filed and served a skeleton argument the evening before the hearing, in breach of the Tribunal’s directions in the error of law decision and following chasing emails, with apologies for its tardiness. Ms Lecointe had not seen the appellant’s bundle or submissions, although they had been before the Tribunal at the error of law hearing, and so a short adjournment was provided to enable her to read the documents.
12. The appellant was not legally represented but brought with him to the hearing a friend, Dr Shakib Ahmad, who applied to address me on his behalf. Ms Lecointe had no objection and, having established that Dr Ahmad was indeed simply a family friend and that the appellant was content for Dr Ahmad to speak for him, I allowed him to represent the appellant. Ms Lecointe had no questions for the appellant and it was agreed that there was no dispute as to the factual situation in the case. In the circumstances the appeal proceeded on the basis of submissions only. Given that the appellant was a litigant in person it seemed appropriate to hear from Ms Lecointe first, so that Dr Ahmad would have a clear understanding of the respondent’s case, although he confirmed that he had received and read Mr Deller’s submissions.
13. Ms Lecointe relied upon Mr Deller’s skeleton argument/ written submissions. It is difficult to summarise the submissions and I therefore set them out in full, as follows.
“Submissions
4. This is a complex case where the chronology of events including significant changes to the governing statute is crucial in what the Secretary of State says is an inevitable outcome. The relevant events are addressed in turn.
Application of 25 November 2020
5. Mr Hussaini’s first EEA family permit application was made on 25 November 2020 and was refused on 6 April 2021. The Respondents decision dated 6th April 2021 explains that the appellants in-laws were not in scope for consideration as a direct family member. The Paragraph under the headline Decision, reads:
• In order to meet the relevant EEA Regulation 7, you must demonstrate that you are a ‘dependent direct family member’ of your EEA sponsor and that your EEA sponsor is a qualified person. This means relatives of the EEA national in the ascending line must be dependent upon their sponsor. Financial dependence should be interpreted as meaning that you need the financial support of the EEA national or his or her spouse/ civil partner in order to meet your essential needs in the country where you are present and that the sponsor will be able to support you once in the UK. please see electronic p62 appellant’s bundle.
6. It is clear the basis of refusal in this decision is because the appellant was not a family member of the EEA national but a family member of his family member.
The second application of 6 April 2021 for an EEA family permit and the issue of such a family permit on 4 May 2021
7. The significance of the timing of this application goes beyond Judge Moffatt’s correct conclusion that it could not have created any rights under the Withdrawal Agreement pursuant to Article 10(2) or 10(3) following Batool. It also meant that as the 2016 EEA Regulations had ceased to exist at 11pm on 31 December 2020 (barring any preserving circumstances none of which applied) there was simply no framework under which an application for an EEA family permit could be made, considered or decided. Whatever led to the EEA family permit being issued it had no legal effect in terms of establishing any entitlement under the 2016 Regulations, which no longer existed. That family permit thus had no validity as having no basis for existence as no provision existed for an issue in the circumstances.
8. It is of course extremely unfortunate that the appellant was led to believe that he would be able to succeed with an application under Appendix EU as he could never meet the relationship requirement as a family member of a relevant EEA citizen but that is not something addressable in the instant appeal due to the limited grounds of appeal.
The application of 15 June 2021 for leave to remain under Appendix EU
9. The Respondent can find no evidence that advice was given to the Appellant on any entitlement to apply under Appendix EU after arrival, but apply he did. but the ensuing refusal was open to challenge on either or both grounds of appeal provided by regulation 8 of the Citizens’ Rights Appeals regulations 2020. It is suggested at [2] of Judge Moffatt’s determination that only the ground relating to Appendix EU rules was exercised and not the one relating to breach of Withdrawal Agreement rights, but in fact on closer examination neither could succeed.
10. The application was doomed under the rules as Mr Hussaini could not meet the relationship requirement, not as a son-in-law being in one of the family relationships permitted by the definition unless he had a relevant document confirming that he was an Article 3.2 beneficiary whose admission and residence had been facilitated based on an application made before 11pm on 31 December 2020. The Withdrawal Agreement ground could also not be made out for a number of reasons.
Not in scope of the Withdrawal Agreement due to date of arrival
11. Plainly Mr Hussaini did not arrive in the UK until after 31 December 2020 and he was thus not in scope as a family member of a relevant EEA national.
12.According to the chronology in the error of law decision at [5], the appeal against the initial refusal of an EEA family permit was withdrawn on 3 December 2021. Although it is the Respondent’s position that that appeal was bound to have failed in any event, the withdrawal of it ended any possibility of relying on the application for facilitation made before 31 December 2020 and additionally that admission and residence was being facilitated (Article 10(3) of the Withdrawal Agreement).
Vasa principle not applicable
13. It is suggested that the issue of an EEA family permit at all constituted facilitation of admission and residence in a manner akin to the entry stamp which was the subject of the Court of Appeal’s decision in Vasa and another but this submission does not stand scrutiny. There admission had been before 31 December 2020 and was held to have been compliant with Article 10(2) of the Withdrawal Agreement. There was also no dispute that the relationships fell within regulation Art 8(2) of the 2016 Regulations. Here the family permit had been issued on an application made after 31 December 2020.
Other matters – legitimate expectation and issue estoppel
14. There is no “not in accordance with the law” ground of appeal under regulation 8 of the 2020 Regulations or elsewhere in section 84 of the 2002 Act (which would in any event would have needed consent as a “new matter”) which was capable of admitting questions of legitimate expectation or issue estoppel arising from the objectively erroneous issuing of the EEA family permit.
Potential application of the change in rules in HC 617
15. Statement of changes to the Immigration Rules HC 617 was presented to Parliament on 10 September 2021 and the changes to Appendix EU and Appendix EU (Family Permit) took effect on 6 October 2021.
16. The change to Appendix EU that the appellant appears to rely on was APP EU10. “In Annex 1, in sub-paragraph (a)(i)(aa) of the definition of ‘relevant document’ in the table, after “family permit” insert “(or a letter from the Secretary of State, issued after 30 June 2021, confirming their qualification for one)”.
17. This brought into Appendix EU a policy that has already been brought in (outside the Immigration Rules) in the published EUSS caseworker guidance. This provided that where an EFM applied for an EEA residence card before the end of the transition period, and the application succeeded (either when the SSHD decided it or by way of an allowed appeal) after the grace period (i.e. on or after 1 July 2021), the SSHD would issue a letter which the EFM could use as a ‘relevant document’ for the purpose of applying to the EUSS as a dependent relative or durable partner of a relevant EEA citizen. This doesn’t apply to the appellant because he never applied for a residence card (because he wasn’t resident here before the end of the TP) and he was never issued with any such letter.
18. What he might have relied on – even though it still could not avail him – was a similar change to Appendix EU (Family Permit) – and not via HC 617. Where an extended family member (non-durable partner) made a valid application for an EEA family permit before the end of the transition period and the application would have succeeded after the end of the grace period, they could be granted an EUSS family permit instead.
19. This was done first under a concession via an operational instruction from 7 October 2021; then under a concession in the EUSS family permit guidance from 1 November 2021; and finally from 6 April 2022 under Appendix EU (Family Permit) as a ‘specified EEA family permit case’ once the concession had been incorporated into that Appendix via HC 1118. An applicant could use that EUSS FP to travel to the UK and then make a valid application for leave to remain under Appendix EU.
20. However, this also does not apply to the appellant because his first EEA FP application was made before end of the Transition Period but not (i) decided in his favour or (ii) decided after the ECO stopped issuing EEA FPs (30 June 2021). His second EEA Family Permit application was not made by the end of the Transition Period and was not successful after the ECO stopped issuing EEA Family Permits (he actually arrived in the UK before the EEA stopped issuing EEA Family Permits).
21. Moreover, he was not granted an EUSS family permit either outside the Immigration Rules or under Appendix EU (Family Permit) because the policy wasn’t introduced until October 2021, and he had arrived in the UK in June 2021.
Conclusion
22. In conclusion, the Respondent maintains the line that notwithstanding any unfortunate circumstances or errors in the issue of previous documents, there is simply no basis on which this appeal can succeed on the two available grounds in a 2020 Regulations appeal Mr Hussaini is not the family member of a relevant EEA citizen as the relationship between him and his sponsor is not one permitted under the relevant definition in Annex 1 to Appendix EU.”
14. Ms Lecointe made additional submissions. She relied upon the first refusal decision of 6 April 2021 which she submitted confirmed that the appellant would not have been able to qualify under the EEA Regulations as an extended family member, even if he could have demonstrated financial dependency upon the EEA national, because he fell outside the relatives who could qualify. She submitted that, although the appellant was subsequently issued with an EEA Family Permit, he was never advised that he could qualify under the EUSS in the UK and that the email dated 29 May 2021 at page 61 of the appeal bundle, upon which he relied, was only a generic notification which was not specific to the appellant. Ms Lecointe rejected the assertion made on behalf of the appellant that the email created any legitimate expectation that leave would be granted under the EUSS. She submitted that the withdrawal of the appeal by the appellant restricted any rights he had under the Withdrawal Agreement and brought to an end the application for facilitation. Ms Lecointe submitted that the principles in Vasa were not relevant given the generic nature of the respondent’s email of 29 May 2021 and the fact that the appellant did not have a qualifying relationship with the EEA national. There was no guarantee that any application made by the appellant before the expiry of his EEA Family Permit would be successful. As for the question of any Article 8 rights, that was a new matter for which consent had not been given by the respondent and was therefore not before the Tribunal.
15. In response, Dr Ahmad submitted that the respondent had ignored the basis of the initial refusal, which was purely on the question of financial dependency and not on the basis of the relationship between the appellant and the EEA national. The appellant had addressed the financial dependency by providing a substantial amount of financial evidence which then led the decision-maker to issue the family permit, after full scrutiny of his application. Dr Ahmad submitted that the email of 29 May 2021 was a promise to the appellant and was not a generic statement. There was therefore a legitimate expectation that the appellant would be granted leave under the EUSS. The respondent had misunderstood the facilitation issue by ignoring the specific circumstances and ignoring the reason for the appellant having withdrawn his appeal, namely because he had been issued with a family permit. He could have been denied entry to the UK if the family permit had been issued in error, but he was not. Dr Ahmad submitted that the appellant’s case was stronger than that in Vasa as he was issued with a family permit after full scrutiny of his application prior to coming to the UK. Dr Ahmed then made submissions related to Article 8 and submitted that it was not the case that the Tribunal was precluded from considering the matter.
Analysis
16. As stated in the respondent’s written submissions this is a complex case, given the rather unique chronology of events which has coincided with significant changes in the legislative framework. That chronology has created a situation which can perhaps be considered to have given rise to some level of unfairness for the appellant. That, however, is not a ground of appeal upon which he can rely. Neither is the question of legitimate expectation, and I agree with [14] of the respondent’s written submissions to that effect. In any event I reject the suggestion that there was ever any promise made to the appellant that he would be granted leave under the EUSS once he arrived in the UK and I do not accept that the email of 29 May 2021 can be considered as giving rise to any expectation that that was the case. In addition, the appellant is not entitled to rely upon Article 8 given that the respondent has refused consent for that being argued as a new matter.
17. The only grounds of appeal available to the appellant are that the respondent’s decision is in breach of the immigration rules in Appendix EU and/or that the respondent’s decision is in breach of his rights under the Withdrawal Agreement. It is the respondent’s case that the appellant cannot succeed on either ground and that the chronology of events leads inevitably to only one outcome. However I do not agree. It seems to me that the particular and unique chronology of events in this case has created a situation which can give rise to more than one outcome.
18. I take as the starting point, as did the respondent, the initial refusal decision of 6 April 2021. Both the written submissions and Ms Lecointe’s submissions were to the effect that the appellant’s application of 25 November 2020 had been refused on the grounds that his relationship to the EEA national sponsor did not fall within the permitted relatives who could qualify as extended family members. I do not accept that to be the case. Whilst the written submissions and Ms Lecointe’s oral submissions relied upon the first part of the refusal decision of 6 April 2021 which addressed the relationship, that referred only to the appellant’s ability to meet the definition of ‘family member’ under regulation 7 of the EEA Regulations 2016, which he clearly could not. There was no suggestion in that decision that he could not qualify as an extended family member under regulation 8 other than in relation to the question of financial dependence upon the sponsor. Indeed had it been the case that the appellant could not have qualified as an extended family member on the basis of his relationship, there would have been no reason for the decision-maker to refer to the issue of financial dependence, and neither could there have been any basis for the appellant to have succeeded on his subsequent application. Accordingly I do not agree with Ms Lecointe that the appellant could never have qualified whether he could demonstrate financial dependence on the EEA national or not. The fact that the entry clearance office (ECO) was satisfied with the evidence subsequently submitted by the appellant in regard to his financial dependence upon his EEA national sponsor, such that a family permit was subsequently granted, is ample evidence that the respondent was satisfied that the appellant was an extended family member of the EEA national, for the purposes of regulation 8 of the EEA Regulations.
19. The next question is the status of the second application made on 6 April 2021 which led to the issue of an EEA family permit on 4 May 2021. As stated in my error of law decision at [10], on its face the First-tier Tribunal Judge had been correct in concluding that the application, having been made under the EEA Regulations 2016 after the specified date of 31 December 2020, did not entitle the appellant to any rights under the Withdrawal Agreement, in line with Batool [2022] UKUT 00219 at (1) of the headnote. In that regard it has, it seems, always been assumed that the ECO issued the EEA family permit in error. However, the circumstances in which the application was made have to be carefully considered.
20. It is relevant to consider that the application did not stand in isolation. It was made during the period when the appellant had an outstanding appeal against the refusal of his previous application and was made to address the errors in the first application. It may well have been the case, therefore, that the ECO did not make a mistake, but rather treated the second application as a request to reconsider the first application and thus treated the application as a continuation of the original application made prior to the end of the transition period. In such circumstances, the appellant would have fallen within the scope of the Withdrawal Agreement in Article 10(3) as a person who had “applied for facilitation of entry and residence before the end of the transition period, and whose residence is being facilitated by the host State in accordance with its national legislation thereafter”. Whilst there is no evidence to suggest that that was what occurred, neither is there any evidence to the contrary. Indeed if the respondent is relying upon the contrary, in doing so she is accepting that one of her officials made an error and misunderstood the requirements of the Withdrawal Agreement and the immigration rules.
21. It is also relevant to consider that the appellant entered the UK at a time when his first application was still pending, or at least had not been finally determined, given the outstanding appeal against the refusal decision, and that he was permitted entry to the UK on an EEA family permit issued to him prior to his departure from Pakistan.
22. In the circumstances it seems to me that, relying upon what did in fact occur, namely the issue of an EEA family permit in Pakistan and the appellant’s permitted entry to the UK without his EEA family permit being queried, it can be accepted that the appellant’s entry to the UK was being facilitated by the host state on the basis of an application for facilitation of entry and residence made prior to the specified date and which was accordingly lawful and valid. It follows, therefore, considering that the appellant’s ongoing dependency upon his EEA national sponsor has not been disputed by the respondent and that he held a relevant document as the dependent relative of his EEA national sponsor, that his application under the EUSS ought to have succeeded on the basis that he was and is eligible for pre-settled status under rule EU14 of Appendix EU as the family member/dependent relative of the relevant EEA citizen.
23. As such, the appellant’s appeal succeeds on the grounds that the respondent’s decision is in breach of the immigration rules in Appendix EU and in breach of the Withdrawal Agreement.
DECISION
24. The decision of the First-tier Tribunal having been set aside, the decision is re-made by allowing the appellant’s appeal.

Signed: S Kebede
Upper Tribunal Judge Kebede

Judge of the Upper Tribunal
Immigration and Asylum Chamber

9 May 2025