Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005913

First-tier Tribunal No: EU/50553/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 24 March 2025

Before

UPPER TRIBUNAL JUDGE CANAVAN
DEPUTY UPPER TRIBUNAL JUDGE SINGER

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

GIORGI BAKHTADZE
Respondent

Representation:
For the Appellant: Mr M Murphy, instructed by Lawlex Solicitors
For the Respondent: Ms H Gilmour, Senior Home Office Presenting Officer

Heard at Field House on 05 March 2025

DECISION AND REASONS

1. The Secretary of State (“SSHD”) appeals against the decision of First-tier Tribunal Judge Roblin (“the FTJ”) dated 27 October 2024, with permission granted by First-tier Tribunal Judge Sills on 18 December 2024. For ease of reference, we refer to the parties below as they were in the First-tier Tribunal.

Background and immigration history of the Appellant

2. The Appellant is a national of Georgia, born on 30 September 2003. He last entered the United Kingdom on a visa issued on 18 July 2018, which was valid until 19 January 2019. There is no evidence to show that the Appellant applied for further leave to remain, and he became an overstayer. Nor is there any evidence to show that the Appellant made an application for an EEA residence card to recognise any claimed rights of residence under EU law before the end of the transition period on 31 December 2020.

3. On 30 June 2021 the Appellant (when still aged 17) applied under the EU Settlement Scheme, sponsored by Sofia Kavzinadze (“the sponsor”), a national of Georgia who had been granted pre-settled status on the basis that she was “a family member who has retained the right of residence by virtue of a relationship with a relevant EEA citizen”, (namely Mr Olegs Berezanins, a Latvian national). The Appellant’s application was voided on 8 October 2021, but the Respondent agreed to the reconsider this decision on 28 July 2023. The application was refused on 9 January 2024.

4. In the refusal letter the Respondent did not accept that the requirements for settled status or pre-settled status were met. The respondent said that it was not accepted that the Appellant had provided sufficient evidence to confirm that he ceased to be a family member of a relevant EEA citizen on the termination of the marriage or civil partnership, on the basis that documents provided showed that the marriage between Sofia Kavzinadze and Olegs Berezanins was terminated on 23 September 2020, but his guardianship under Sofia Kavzinadze did not begin until 8 June 2021. Therefore, he was not a family member of the relevant EEA citizen at the time of the termination of the marriage, and it was asserted that he did not meet the requirements for settled status as a family member who had retained the right of residence by virtue of a relationship with a relevant EEA citizen. Because of this he was not deemed to meet the eligibility requirements for either settled or pre-settled status.

5. The Appellant appealed to the First-tier Tribunal and directions were made. In the ASA for the Appellant, it was argued that the issue was whether (i) the Appellant met EU14 on the basis of being a “dependent relative”, or (ii) whether he could meet EU14A as a “joining family member”, which included the “child” of a “relevant sponsor”. It was also argued that consent ought to be granted for the Tribunal to consider Article 8 ECHR (however consent was not granted). It was asserted that while there was a guardianship order granted in 2021 the Appellant had been a member of the household and dependent upon the sponsor since his arrival in the UK and therefore met the requirement of the Rules. It was also argued that the Appellant fell within being a “child”.

6. In the Respondent’s review, despite the application and appeal never being advanced in this way, the Respondent appeared to argue that an issue was whether the Appellant met the requirements of being a “person with a derivative right to reside” under Appendix EU. The Respondent however also continued to rely on the refusal letter as to the Appellant not meeting the eligibility requirements to be a dependent family member of a relevant EEA citizen, highlighting again in paragraph 11 the timing of what was described as a “guardianship order” from 8 June 2021.

7. In her decision, the FTJ directed herself at [12] that the issues in dispute were whether the Appellant had shown “he is a dependent relative of a relevant EEA citizen or a family member (EU14 or EU14A)”. She later [16] recognised the respondent had refused consent for Article 8 ECHR to be considered but then said that the only issue was whether the Appellant “meets the requirements as a person with a derivative right to reside under Appendix EU of the Immigration Rules”. The FTJ set out some of the requirements of the Rules and then went on to make her findings. At [18] the FTJ noted that there was no special guardianship order before her, but there was what she described as a “notary certificate of declaration signed by the Appellant’s mother giving the sponsor authority to make independently any kind of decision regarding the Appellant’s education, travel, health, and to issue any kind of permission which will be needed to protect his welfare.” The FTJ said that the “validity of the document granting guardianship to the sponsor was not challenged by the Respondent” and she accepted it was a “a valid document confirming the sponsor’s right to make decisions in relation to the Appellant”. The FTJ accepted at [19] that the Appellant was 15 when he came to the UK and from the time he entered he was living as part of the sponsor’s household and dependent upon her.

8. At [20] the FTJ referred briefly to short extracts of the Rules and then said that on the basis of the aforementioned provision, she was “satisfied that the Appellant who is subject to a guardianship, which is not disputed, is a dependent relative”. She then at [22] set out part of the definition of a “family member who has retained the right of residence”, and concluded at [23]:

“The dependency existed prior to the specified date and continues to the date of the application. Although the guardianship was granted in 2021 the Appellant has been a member of the household and dependent since his arrival in the United Kingdom. Accordingly, the Appellant would meet EU11 if 5 years have lapsed or EU14 in the alternative.”

She allowed the appeal.

The appeal to the Upper Tribunal

9. The Respondent argued in her grounds of appeal that the Judge:

(a) failed to properly have regard to whether the dependent relative family relationship existed before 31 December 2020 compared to after that date.

(b) failed to note that the sponsor was in fact a citizen of Georgia and not an EEA national, which was a material requirement of the Rules;

(c) failed to take into account that the Appellant needed to possess a “relevant document” to be an extended family member of an EEA national.

(d) improperly referred to a “derivative right to reside” when it was not relevant to the case.

2. Permission was granted by Judge Sills on the basis that it was arguable that the Judge:

(a) failed to appreciate that the sponsor was not herself a relevant EEA national; or

(b) had given inadequate reasons overall, and for any finding that the Appellant was a ‘family member who had retained the right of residence’ in particular.

(c) erred in any finding that the Appellant was a dependent family member of an EEA national or their spouse, assuming that was the finding made, given the timing of the sponsor becoming the Appellant’s ‘legal guardian’.

3. In the Rule 24 response drafted by Mr Davison, it was argued on the Appellant’s behalf that the only issue at FtT hearing was the timing of the grant of guardianship, and the Respondent’s attempts at additional arguments were contrary to the procedural rigour demanded by the reformed process, having regard to the principles in TC (PS compliance - “issues-based” reasoning) Zimbabwe [2023] UKUT 00164 (IAC) and Lata (FtT: principal controversial issues) [2023] UKUT 00163 (IAC). It was argued that the FTJ gave adequate reasoning for the conclusions drawn on the issues before her.

The error of law hearing

4. At the error of law hearing, Ms Gilmour, in addition to relying on the point about there being no legal guardianship order in place by the end of the transition period, argued that the sponsor was not an EEA national, and that the Appellant had never held a “relevant document” before the end of the transition period, and that what was referred to as a guardianship order was no such thing, simply a letter. Mr Murphy relied on Mr Davison’s Rule 24 response and argued that the Judge had given adequate reasons dealing with the points raised before her and it was not fair for the Respondent to raise matters not raised in the refusal letter or review before the FTT.

5. After hearing submissions, we decided that the FTJ had materially erred in law in her assessment of whether the Appellant met the relevant requirements to succeed as a “dependent relative”, or otherwise; and said that we would give a more detailed explanation in our written decision. The parties were content for the decision to be re-made in the Upper Tribunal, without the need for further evidence or an adjournment.

Decision on error of law

6. The main point taken in the refusal letter was about the timing of the “guardianship” document which was not issued until 8 June 2021. This point was maintained on review at paragraph 11 and the Respondent stated that the Appellant did not meet the definition of a family member of a relevant EEA citizen prior to the “specified date”, namely 31 December 2020.

7. The reason the Judge allowed the appeal was she decided that the Appellant was a “dependent relative” (see [21-23]), but for reasons which follow it is plain that she failed to properly engage with the need for the dependent relative family relationship to have existed before the “specified date”. The decision was also inconsistent as to what the Judge had in mind were the principle controversial issues, at [12] asking whether the Appellant was a “dependent relative of a relevant EEA citizen or a family member (EU14 or EU14A)” yet in her findings at [16] referencing the issue being whether the Appellant had a derivative right to reside. We recognise that the Respondent’s review may have contributed to this confusion, but, as it transpired, the Judge’s findings were not adequate to resolve any of these issues.

8. In order for the Appellant to be a “family member of a relevant EEA citizen” (both in respect of EU11 or in EU14), he had to meet either one of the five sub-paragraphs (a)-(e) of the definition of “family member of a relevant EEA citizen” in Annex 1 to Appendix EU. The case for the Appellant was advanced in the ASA on the basis that he could meet sub-paragraph (e) of the definition of a “family member of a relevant EEA citizen” as a “dependent relative”, which meant he had to show that he was

(1) the “dependent relative”,
(2) before the “specified date”,
(3) of a relevant EEA citizen (or of their spouse or civil partner, as described in sub-paragraph (a) of the definition of a “family member of a relevant EEA citizen”)
(4) and the dependency (or, as the case may be, their membership of the household or their strict need for personal care on serious health grounds) continues to exist at the date of application (or did so for the period of residence relied upon).

9. It is not the case that the only issues raised on appeal to the Upper Tribunal were arguments not relied on in the FtT. The Respondent’s grounds of appeal to the Upper Tribunal clearly argued about the timing of the formation of the family relationship and the significance of 31 December 2020. The key argument in the refusal letter was that the Appellant was not a family member of a relevant EEA citizen at the time of the termination marriage. The Respondent argued on review was that, even on his own case, the Appellant did not become a relative until after the “specified date”.

10. A proper reading of the determination discloses that the Judge never made any finding as to whether the dependent relative family relationship existed before 31 December 2020. Rather her conclusion at [23] and her earlier findings at [19] were that there was dependency and membership of the household before that date. That is not the same as the formation of or existence of the family relationship. One can be dependent upon someone, or a member of their household, without necessarily being a relative of them. The failure to make a clear finding on whether the dependent relative family relationship existed before the specified date was the key issue before her in the refusal letter and review; and it was not resolved. Even if it were accepted that the “notarised certificate of declaration” (pages 69-71 of the consolidated bundle) from the Appellant’s mother, was sufficient to formalise the family relationship to make the Appellant a relative of the sponsor, he was not the sponsor’s relative before 31 December 2020, only after 8 June 2021. He could not therefore have met the definition of a “family member of a relevant EEA citizen” at sub-paragraph (e) as a “dependent relative” as defined in Annex 1. That was therefore a material error of law.

Remaking the decision

11. Neither the Appellant nor his Sponsor are EEA citizens. The Appellant, we find, had no familial relationship with the sponsor or her former husband, who was an EEA citizen, before 31 December 2020. Even if the Appellant went to live with Ms Kavzinadze and her husband in an informal fostering arrangement in 2018, there is no evidence to show that she had any legal guardianship over the Appellant before the end of the transition period on 31 December 2020. For this reason, there is no evidence to show that the Appellant would have qualified as a ‘family member’ for the purposes of EU law. Even if he might have argued that he was an ‘extended family member’ of some kind he would have needed to apply for and be granted a residence card to facilitate rights of residence under EU law before 31 December 2020: see Celik [2023] EWCA Civ 921. There is no evidence to show that he applied for or was granted a ‘relevant document’ before the specified date.

12. We do recognise that the Respondent is now seeking to expand on the point made in the refusal letter as to why the Appellant did not meet the Residence Scheme Immigration Rules, and further focus on the sponsor’s nationality and the status of the guardianship document. The central issue was and always has been whether the appellant was the family member of a relevant EEA citizen. Even leaving aside the point about the dependent relative family relationship not existing before the specified date, the other key aspect of the definition of “dependent relative” was that he had to be a family member of a relevant EEA citizen – this point was always in issue even if not particularised as clearly as it could have been - and he could not meet this, at the specified date, or even now. In addition to not being able to show he was a relative of a relevant EEA citizen, there was no legal guardianship order, and he had no ‘relevant document’.

13. The other issue pleaded in the ASA was that the Appellant could succeed under EU14A(a)(i) because he was “a joining family member of a relevant sponsor”. The FTJ never resolved whether the Appellant met the requirements for being EU14A as a “joining family member”, which included the “child” of a “relevant sponsor”. However the Appellant could not have met the definition of “child” in Annex 1. He is not the sponsor’s biological child. There was no special guardianship order, nor any other credible means of meeting that definition, such as adoption, or other formal court order listed in the non-exhaustive list after the “in addition”. Also, the sponsor, as a national of Georgia, could not meet the definition of “a relevant EEA citizen (where, in respect of the application under consideration, the date of application by the relevant EEA citizen or their family member is before 1 July 2021)”. Further, the sponsor could not be a “relevant sponsor” at part (a) of the definition of “a joining family member of a relevant sponsor” because of her Georgian nationality.

14. Although the Respondent in the review raised whether the Appellant met the definition of a “person with a derivative right to reside”, that has never been relied upon by the Appellant.

15. For these reasons the appeal falls to be dismissed. The decision is in accordance with Residence Scheme Immigration Rules and does not breach any right the Appellant has by virtue of the Withdrawal Agreement.

Notice of Decision

The decision of the First-tier Tribunal is set aside.

The decision is re-made as follows: the appeal is dismissed.

RSinger

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

24.3.25