Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005713

First-tier Tribunal Nos : EU/54926/2023
LE/03585/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 13 October 2025

Before

UPPER TRIBUNAL JUDGE RIMINGTON
DEPUTY UPPER TRIBUNAL JUDGE IQBAL

Between

GIORGIO DIEGO GRAGLIA
(NO ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms I Mahmood, instructed by Kitty Falls Immigration Law
For the Respondent: Ms L Clewley, Senior Home Office Presenting Officer

Heard at Field House on 1 August 2025

DECISION AND REASONS

1. The application for permission to appeal was made by the appellant against the decision of Judge of the First-tier Tribunal (‘the Judge’) who dismissed the appeal on 29 September 2024 following a hearing on 26 September 2024.

2. The appellant is an Italian national born in 1971 and he appealed the decision dated 7 October 2022 in which the respondent refused an application under the EUSS Appendix EU submitted on 5 May 2022.

3. In the decision to refuse the application, the respondent noted that as the appellant had applied on or after 1 July 2021, dependency on his relevant sponsor had to be ongoing and evidence of the same would be required. The appellant had stated in his letters of 21 September 2022 and 1 October 2022 that he was only dependent on his sponsor (son) for two months and was now self-employed and therefore no longer dependent on his son financially. The respondent concluded therefore that the appellant was unable to meet the requirements for settled status or pre-settled status as a joining family member and the application was accordingly refused.

The Judge’s Decision

4. The appeal was dismissed as the Judge found the material date for her assessment was 5 May 2022 and at this date the appellant agreed he was not a dependant on his son.

5. The Judge’s decision is brief as at [4] she records that she sought to clarify from the presenting officer on behalf of the respondent when it was asserted dependency had to be established because it had been unclear whether their position was that it would simply be at the date of application or whether it had to be ongoing. The Judge records that ‘it was agreed that dependency had simply to be demonstrated at the date of application’. Further that whilst there had been multiple applications the appeal before the Tribunal was in relation to the decision of 7 October 2022.

6. The Judge also noted the appellant claimed he had made multiple applications, which resulted from him uploading evidence on a number of occasions which he believed triggered a new claim each time rather than adding evidence to his original claim. In effect the date of his application kept being revised. His original application was made when he arrived in the UK in September 2021.

7. The appellant was not represented; however it is recorded at [5] that the issues agreed by the parties were ‘Has the appellant demonstrated that he was dependent on the appellant’s son at the date of application’. At [6] the judge heard evidence from the appellant and his son and it was noted that dependency was not continuing as at the date of May 2022 although at [7] the appellant stated he was dependent on arrival for around two months. Further, the Judge recorded that the appellant stated, ‘if he had appealed the wrong decision, it was just an error’.

8. The Judge recorded the respondent’s submissions were that the only relevant appeal was as a result of the refusal of the application of 05/05/2022 and that on the appellant’s own evidence, he was not dependent at that time.

9. The Judge found at [9] that the material date for the assessment was 05/05/2022 and at [11] that she did not have jurisdiction to look at the application of September 2021 or indeed any other application other than 05/05/2022 as that was the only appeal that was before her. At [12] the judge recorded that there was no discretion for the Tribunal to go back and look at earlier applications and that she could only consider decisions that had been properly appealed. Therefore there was no finding on whether or not there was dependency in place at the date of the September 2021 application. The appeal was accordingly dismissed.

Grounds of Appeal

10. There were essentially three grounds of appeal. First, that the judge’s decision was contrary to the provisions of Appendix EU, in particular EU 10.2 of Appendix EU which allowed further applications made during the lifetime of an extant application to be treated as a variation of the previous application. Second, that the complexity of the EUSS Rules and application process were not addressed by the judge as an issue in the case and this was directly relevant to the issue of whether the appellant’s original application made on 6 September 2021 had been varied by subsequent applications. Third, that the judge had failed to balance the appellant’s evidence of the application process with the respondent’s assertion that the relevant application date was 5 May 2022 and therefore failed to consider whether the appellant’s second and third applications should have been treated as variations of the first application.

Grant of Permission

11. First-tier Tribunal Judge Parkes granted permission on 13 December 2024 at [2] highlighting ‘The grounds argue that the Judge erred in respect of the date of the application to be considered given that the later application was to be treated as a variation of the initial undecided application. It is arguable that the Judge erred with respect to the relevant date’. It was noted that the grounds therefore disclosed arguable errors of law.

The Hearing

12. At the error of law hearing we heard submissions from Ms Mahmood and Ms Clewley, which are a matter of record. Before us we had the composite bundle together with a Rule 24 response by the respondent and an appeal skeleton argument served by the appellant.

13. The focus of the appeal skeleton argument and submissions at the hearing from Ms Mahmood were based on Ground 1. That is whether or not the appellant’s subsequent applications following the initial application made on 6 September 2021, constituted variations of that application.

14. The skeleton argument set out that the first application was made on the 6 September 2021 (reference number ending 5419). There were two subsequent applications dated 21 December 2021 (reference number ending 3529) and 5 May 2022 (reference number ending 2303) and that both constituted a variation of the initial application.

15. Following the application being made in September 2021, in December 2021, the appellant was contacted by the respondent for further information (by the 28th December 2021). The appellant recalled when providing this evidence he accidentally generated a further application on the 21 December 2021 (reference ending 3529). Between September 2021 and December 2021 he remained dependent on his son.

16. On behalf of the appellant reliance was placed on the subject access report at [162/PDF] which highlighted:

Caller successful in clearing via the caller authentication app. Caller received an email saying application has been refused 3434-1714-4791-5419 UAN for other applications. Caller had another application ongoing at the same time and this application has been refused. Advised we still have this application ongoing and that if we need anything further we will be in contact – 07/01/2022.

17. He received a refusal decision on the 5th January 2022 (reference number ending 5419), and when he queried this he was told that another application was ongoing and he would be contacted for anything further.

18. He did make attempts to contact the respondent on the 26th April 2022 and then uploaded yet further information on the 5th May 2022 which, he says, accidentally generated the third application (reference number ending 2303). The respondent made a decision on 7 October 2022 (reference number ending 2303).

19. Therefore, considering the timeline it was evident no decision had been made on the second application made on 21 December 2021 (reference number ending 3529). This was therefore indicative of an outstanding application from December 2021.

20. Submissions were also made on other issues around dependency, the complexity of the Rules as well as the appellant being a litigant in person and the Home Office failing to clarify whether a variation application had been made. We were taken to the relevant parts of Appendix EU and Rules previously in place as well as the current Rules that governed variation applications.

21. On behalf of the respondent, Ms Clewley relied on the Rule 24 and noted that whilst the appellants were litigants in person they had been assisted throughout the appeal process by solicitors. The notice of appeal on CCD highlighted that the May 2022 decision (Home Office reference ending 2303) was the one being appealed. She agreed that there had been a change to the law in relation to 34BB after the date of the second application being made but before the third application. She also agreed that the second application remained outstanding by the time the third application was lodged. She stated that the applications were not treated as variations as each application, had its own individual application number.

22. We sought to clarify what had happened to the second application and she submitted it had been treated as withdrawn but nothing further to indicate the reasons why it had been treated in that manner. Further, that EU10 of Appendix EU only applied to outstanding applications. In any case the appellant, in both the September 2021 and December 2021 applications had failed to show dependency.

23. For the sake of completeness the Rule 24 outlined that paragraph EU10(2) explicitly referred to the “previous such application” in singular terminology and the previous application to 5 May 2022 was dated 21 December 2021 at a time when the appellant was not financially dependent and therefore in any case could not meet Appendix EU. Submissions were also made with reference to ground 2 and ground 3.

24. Ms Mahmood by way of reply stated the appellant had never been told that his second application was withdrawn and the Rules at the time, particularly EU10 and 34BB, were clear that multiple applications were not to be treated as withdrawn but rather variations and on the Respondent’s submissions in any case, if all three applications were treated as separate applications then there was still a decision outstanding on the second application. She further highlighted that in relation to dependency there was no decision made on the further evidence provided by the appellant which had been requested by the Home Office.

Legal Framework

25. As at 6 September 2021 through to 5 April 2022 the relevant wording of EU10 and paragraph 34BB were as follows:

EU 10(2) In paragraph 34BB of these Rules, sub-paragraphs (3) to (5) do not apply to applications made under this Appendix.

34BB (1) An applicant may only have one outstanding application for leave to remain at a time.
(2) If an application for leave to remain is submitted in circumstances where a previous application for leave to remain has not been decided, it will be treated as a variation of the previous application.
34GB – Where a variation application is made in accordance with paragraph 34E, the date of variation application (the new application) is made is deemed to be the date the application was made prior to being varied (the old application).

26. From 6 April 2022 the wording of EU10(2) was changed by Statement of Changes HC1118 to:

EU10(2) Paragraph 34BB of these Rules does not apply to applications made under this Appendix. Where a further valid application is made under this Appendix before a previous such application has been decided, the further application will be treated as an application to vary the previous application and only the latest application will be considered.

Analysis and Conclusions

27. We remind ourselves at the outset of the need to exercise appropriate judicial restraint before concluding there has been a material error in the Judge’s decision. We find the appellant’s case turns on whether there is an error in relation to Ground 1 and whether or not there had been a variation to the appellant’s applications.

28. We note the chronology of the appellant’s entry and applications as follows:

◦ Application 1: 06/09/2021 – (reference number ending 5419) – appellant’s application outside the UK;
◦ 14/09/2021 – appellant arrives in the UK;
◦ Application 2: 22/12/2021 - (reference number ending 3529) – further application/further evidence submitted;
◦ Refusal 1: 05/01/2022 - (reference number ending 5419) – application refused
◦ Application 3: 05/05/2022 - (reference number ending 2303) – further application/further evidence submitted;
◦ Refusal 3: 07/10/2022 - (reference number ending 2303) – application refused

29. We note the letter from the Appellant dated 1 October 2022 [368/AB] which is before refusal 3 (on the 07/10/2022) and in which the appellant sought to explain that his first application made in September 2021 had the Home Office reference number ending 5419. He had then on two occasions provided further evidence of dependency, however each time he uploaded new evidence he asserts he accidentally started a new application, one on 22 December 2021 (reference number ending 3529) and one on 5 May 2022 (reference number ending 2303). Further that ‘the only application that I intended to do is the first one …as the other two…were mistakes’ and ‘So, I need to know how to proceed, and withdraw any application that was made beside the Home Office reference ending 5419 and provide whatever you required as I am sure that I fulfil the requirements to apply for pre-settlement’. By the time the applicant had written this letter, however, the application 5419 had been refused on the 05/01/2022.

30. From the chronology above, it appears that following application 1 being refused there was no appeal against that decision. The SAR which discloses the telephone call from the appellant querying the 05/01/2022 refusal on the 07/01/2022, records that he was told there was a refusal on application 1, but that he had an outstanding application in relation to application 2, and for which we note, to date there has been no refusal decision. Following this telephone call we note, he took no action in relation to the refused application 1 either to inform them that his intention had been to vary that application or that he intended to appeal it.

31. With reference to application 3, we note however that an appeal was lodged on 11 August 2023, which although out of time, was admitted. The IAFT-5 form confirms as follows:

Section 2- Your Home Office Decision
a. Home Office reference number : 3434-9278-8201-2303
e. Date of application to the Home Office: 05/05/2022
f. Date of Home Office decision: 07/10/2022

32. Drawing these threads together we find that whilst application 1 was pending, the appellant made application 2 which should have been considered a variation application on the rules outlined above. After the application was refused on 05/01/2022 there was no appeal or representations made about its status. However we note that application 2, made on 22/12/2021 was still outstanding. We therefore consider the judge should have addressed her mind to the issue of whether the status of application 3 when it was made on 05/05/2022, under EU10(2) as outlined above should have been considered a variation of application 2 .

33. If that were the case then the further outstanding matter would be the relevant dates to be considered for dependency.

34. There are no provisions in Appendix EU to determine the date of application if an application has been varied under paragraph EU10.(2) and we were accordingly referred to the general immigration rules which govern variations, in particular, paragraphs 34E, 34G and 34GB (as they were to 11 April 2022). These provide

34GB. Where a variation application is made in accordance with paragraph 34BB, the date the variation application (the new application) is made is deemed to be the date the previous application was made prior to it being varied (the old application).

35. Paragraph 34BB, however, applies to leave to remain applications and EU 10 referred to above refers to Appendix EU. The appellant’s first application was under Appendix EU (FP). Regulation 2 under Appendix EU (FP) (in force at the date of application 2 and at the date of decision of 5th October 2022) states as follows:

FP2. This Appendix has effect in connection with the granting of entry clearance for the purposes of acquiring leave to enter or remain in the UK by virtue of Appendix EU to these Rules.

36. The guidance both at today’s date (dated 16th July 2025) and as at the date of the third application (dated 13th April 2022) on the EU Settlement Scheme: EU, other EEA and Swiss citizens and their family members (accessible) caseworker guidance states

‘Where an applicant has a valid application pending under the scheme and then makes a subsequent valid application for leave under another part of, or outside, the Immigration Rules (or vice versa), both applications will be considered…’

37. As such application 2 under a wholly different regime was not a variation of application 1. It is arguable that the judge did err when she concluded at [11] of the FtT decision that

I find that I do not have jurisdiction to look at the application of September 2021 or indeed any other application other than 05/05/2022 as that is the only appeal that is in front of me.

38. Contrary to the Judge’s finding that there was no discretion to go an look any earlier application, it is feasible that the 21 December 2021 (application 2) and 5 May 2022 (application 3) at the very least, under the rules ought to have been treated as one application.

39. However, the Judge also recorded at [11]

‘The appellant’s submissions were that he did meet the rules at the time of his first application as he was dependent at date of application, as he was dependent on arrival for around 2 months.’

40. If that were the case even if the date of application were the date for assessing dependency, (as agreed by both parties at the FtT), the appellant could not fulfil this requirement at the date of application 2 (21st December 2021) as he stated himself he was only dependent for around two months after arrival. He arrived in the UK on 14th September 2021. Two months would take him to mid November 2021. Application 2 was made a month later. Thus, even if the Judge were incorrect about the date of application and the date should have been 21st December 2021, this would make no material difference to the decision. On the appellant’s own evidence and submissions he was not dependent on the sponsor at the date of his second application. For the reasons given above not only had application 1 been decided and not appealed but was made under a wholly different regime and thus application 2 was not a variation of application 1.

41. The Judge made no material error of law and the FtT decision will stand.

Disposal

The decision of the First-tier Tribunal should stand and the appellant’s appeal remains dismissed.

Upper Tribunal Judge Rimington
Deputy Judge Iqbal of the Upper Tribunal
(Immigration and Asylum Chamber) 3rd October 2025