Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000450

First-tier Tribunal No: EU/54468/2023
LE/02239/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 2 September 2025

Before

UPPER TRIBUNAL JUDGE NEVILLE

Between

Stephen Asehene
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Pipe, counsel instructed by BWF Solicitors
For the Respondent: Ms S Simbi, Senior Presenting Officer

Heard at Birmingham Civil Justice Centre on 14 August 2025

DECISION AND REASONS
1. Mr Asehene is a national of Ghana. On 23 July 2019 he applied for an EEA Family Permit, relying on his marriage to Hannah Richardson-Conrad, a national of Germany. After significant delay, the Family Permit was issued on 5 February 2021 and he arrived in the United Kingdom on 27 June 2021. A subsequent application under the EU Settlement Scheme was refused on 3 July 2023, and that decision is the subject of this appeal.
The refusal decision
2. The Secretary of State refused the application because she considered that Mrs Richardson-Conrad was not a ‘relevant sponsor’ as defined by Appendix EU, for these reasons:
You have uploaded a scan of their British passport, showing they are a British Citizen.
From the evidence you have provided, it is noted that your British citizen family member has been a British citizen since birth and they are not considered to be a relevant naturalised British citizen for the purposes of the definition of regulation 2(1) [of the] EEA Regulations, and the EU Settlement Scheme.
Therefore, they are not eligible to be your sponsor under the EU Settlement Scheme and you do not meet the requirements for settled status as a joining family member of a relevant sponsor.
3. The relevance of the Immigration (European Economic Area) Regulations 2016 is that the definition of a relevant sponsor in Appendix EU requires, in this case, that they come “within paragraph (b) of the definition of ‘EEA national’ in regulation 2(1)”. That part of the definition reads:
(b) a national of an EEA State who is also a British citizen and who prior to acquiring British citizenship exercised a right to reside as such a national, in accordance with regulation 14 or 15.
The decision of the First-tier Tribunal
4. Mr Asehene appealed to the First-tier Tribunal (FtT). It issued a decision on 14 January 2024 dismissing the appeal, but that decision was subsequently set aside. When the appeal was re-heard, the issue before the FtT was whether Mrs Richardson-Conrad was indeed a British citizen from birth and, if not, whether she did indeed meet the definition. The FtT’s findings on that issue have not been challenged by either party, and it is appropriate to set them out at length:
29. For the sponsor to be a legitimate child of her father such that she could be recognised as British from birth, under sections 4 and 23 and 32(2) of the 1948 Act, which was the relevant act as at the time of her birth, her parent’s marriage would have to have been recognised as valid in the UK, which it could not be so recognised at the time of her birth because the sponsor’s father already had a wife in the UK, to whom he was validly married under UK law, or her parents would have had to get married after her birth to legitimise her but, in order to do that her father would have had to have been divorced from his UK wife and there is no evidence before me that that happened. The only evidence before me is that her late father’s UK wife sought maintenance for their children, which hints at separation but there is no mention of divorce.
30. Therefore, based on the evidence before me, the sponsor cannot have been British from birth because her parents were not validly married under UK law, and it is UK law which determines whether the sponsor’s late father could pass on his British citizenship to her. This was confirmed by the 1981 British Nationality Act which came into force in 1983 and said that citizenship from a British father could only be passed to his children if he and the mother were married at the time of the birth or they married later on and legitimised the child or he was treated as the father by the laws of the country in which he was domiciled. There is no evidence of either of those scenarios before me and therefore I must conclude that the sponsor cannot have been a British citizen at birth.
31. That leaves the question as to whether the sponsor could acquire British citizenship by descent under section 5 of the 1948 Act. I am not satisfied that she did acquire British citizenship by descent because again, under section 32(2), any child acquiring such citizenship by descent had to be a legitimate child and I have already indicated above that I am not satisfied that the sponsor was the legitimate child of her late father because her parents were not married as at her birth and did not marry thereafter so as to legitimise her.
32. Therefore, the sponsor did not have any British citizenship or entitlement to it as at the time she renounced her Ghanaian citizenship in 2006 in order to become a German citizen and therefore between 2006-11, the appellant was a German citizen, entered the UK as such and was entitled to apply for and be granted the Blue registration certificate which she has produced today.
33. In 2006, the 1981 Nationality Act was amended such that those who were born after July 2006 were entitled to British citizenship from either of the British citizen parents even if the parents were not married to each other at the time of the birth. This did not assist the sponsor because, to be recognised as a British citizen from birth after this change in the law, she still had to have been legitimised because she was born before July 2006. However, that change in the law did alter the position of those whose parents were unmarried and were never legitimised in that it permitted them to apply for British citizenship by registration.
34. However, in 2014 section 4I of the British Nationality Act 1981 was inserted by the 2014 Immigration Act which allowed the sponsor to register as a British citizen on the basis that she would have, in 1983, been an eligible non-British national.
[…]
36. Under this section, if the appellant’s parents had been married at the time of her birth, given that her father was a British citizen of the UK and Colonies, by virtue of having been born in the UK prior to the 1948 Act, the sponsor would have been entitled to be a citizen of the UK and Colonies from birth and therefore would have become a British citizen in 1983 when this Nationality Act came into force. Given that subsection (5) is talking about the sponsor’s potential British citizenship as of 1983 when the 1981 Act came into force, she had not applied for German citizenship in 1983 or before and therefore there would have been no potential British citizenship for her to have lost. Therefore as of 2014, she was entitled to apply for registration as a British citizen and according to the respondent’s guide UKF, Registration as a British citizen for those whose parents were not married at the time of their birth from July 2024, I am satisfied that had she applied for registration in 2014, it is highly likely she would have been granted the right to register as a British citizen, swear the oath of allegiance and become a British citizen. I am satisfied that it is more likely than not that she would have made this application because she applied for her British passport in 2011, when advised that she could do so because of her father’s British citizenship and renewed it in 2018, thereby demonstrating that she wanted British citizenship.
37. Having found that she was entitled to register as a British citizen as of 2014 and being satisfied that she would indeed, have completed the process to become a British citizen, that leaves the question as to what position is she in now? She is a British citizen. Albeit that I am satisfied that she is not a British citizen by birth or descent, she is entitled to be registered as a British citizen and in light of her previous actions, I am satisfied that she would have completed the process and obtained that citizenship.
38. Therefore, as at the date the appellant made his initial application to join her, the sponsor was a dual British and German citizen, having been entitled to that British citizenship after she became a German national and, under the 2016 EEA regulations, that was not an issue for the appellant when he applied to come to the UK in 2019 by virtue of the case of Lounes ([2017] EUECJ (C165/16). […]
5. The FtT nonetheless dismissed the appeal, giving this reason:
39. At the time the appellant made this application for settlement, the sponsor was and still is a British citizen and, because she has not successfully regularised her EU status because she is a British citizen, (albeit, I acknowledge, not for want of trying) her status as a German citizen is not protected under the Withdrawal agreement. Her status under the Withdrawal agreement is only protected if she is residing in the UK as German national and because she is a British citizen and has the right of abode in the UK as a British citizen, that citizenship takes precedence over her German nationality in the UK and she is therefore residing in the UK as a British citizen and not a German citizen. The sponsor therefore could not and still cannot be a relevant sponsor under the EU Settlement Scheme.
The appeal to the Upper Tribunal
6. Dissatisfied with that outcome, Mr Asehene appealed to the Upper Tribunal. The grounds of appeal assert that the FtT, having made the findings of fact above, erred in law by concluding that definition (b) of EEA national in the regulations was not met. Permission was granted by a different judge of the FtT.
7. At the hearing I heard submissions from Mr Pipe and Ms Simbi. Given the time that picking through the various definitions in Appendix EU can take, I am grateful to Ms Simbi for her agreement that no issue arises save for that set out in the above paragraph. She expressly withdrew the previously-filed rule 24 response that had touched on other issues.
8. Mr Pipe argued that the FtT had lost sight of the issue before it, being the relevant definition of an EEA national in the regulations. On its findings, Mrs Richardson-Conrad met all three limbs: she is a national of an EEA State, a British citizen, and prior to acquiring British citizenship in 2011 had exercised a right to live in the UK as an EEA national. That being the only issue between the parties, the FtT should have allowed the appeal. Definition (b) in the regulations was introduced to give effect to the CJEU’s decision in Lounes v SSHD (C-165/16); [2018] Imm AR 502, in which it was held that a person’s spouse could not lawfully be denied derivative rights of residence which would have been granted had the person not naturalised; the FtT’s reasoning at [39] stands in opposition to that principle. Ms Simbi argued that the FtT had been entitled to reach its decision for the reasons it gave.
Consideration
9. Approaching this appeal within the parameters of the parties’ submissions, I agree with those made on behalf of Mr Asehene. The ground of appeal that the FtT had to consider was whether the refusal decision was contrary to the Immigration Rules. The only controversy the FtT identified in that respect was whether Mrs Richardson-Conrad was a British citizen at such a time that she was excluded from the definition of ‘relevant sponsor’. No other requirement was put in issue.
10. The FtT dismissed the appeal for the sole reason that Mrs Richardson-Conrad was a British citizen at the time of Mr Ahesene’s application under Appendix EU, so was not a beneficiary of the Withdrawal Agreement. Yet the very rule in issue permitted such a situation. As summarised in the Secretary of State’s guidance:
2.7 Relevant naturalised British citizen
A family member of a relevant EEA citizen (or a joining family member of a relevant sponsor) can also apply where the relevant EEA citizen (or relevant sponsor) is a dual British and EEA citizen who exercised free movement rights in the UK before the acquisition of British citizenship and who retained their EEA nationality of origin after acquiring British citizenship. This reflects the Court of Justice of the European Union (CJEU) judgment in Lounes.
Such a ‘relevant naturalised British citizen’ is defined in Annex 1 to Appendix EU as either:
• under sub-paragraph (a), an EEA citizen (in accordance with sub-paragraph (a)(i) of the definition of ‘EEA citizen’ in Annex 1 to Appendix EU) resident in the UK and Islands for a continuous qualifying period which began before the specified date
[or]
• under sub-paragraph (b), an EEA citizen (in accordance with sub-paragraph (a)(i) of the definition of ‘EEA citizen’ in Annex 1 to Appendix EU) who, having been resident in the UK and Islands as described above and if they had made a valid application under Appendix EU before 1 July 2021, would, but for the fact that they are a British citizen, have been granted indefinite leave to enter or remain under paragraph EU2 of Appendix EU, which would not have lapsed or been cancelled, revoked or invalidated before the date of application
11. It is the second of those bullets that is claimed for Mrs Richardson-Conrad, and no one has ever doubted that she meets it. There are two further requirements that must be met. The first, as already discussed, is that the person comes within paragraph (b) of the definition of “EEA national” in regulation 2(1). The wording of the second is impenetrable, but happily the parties agree that it is not in issue.
12. The FtT found that Mrs Richardson-Conrad exercised a right to reside in the United Kingdom as an EEA national before acquiring her British citizenship. That finding was determinative of the appeal; Mr Asehene met the requirements of the rules and the ground of appeal was satisfied. The only permissible outcome was for the appeal to be allowed, so I set aside the FtT’s decision and substitute a decision to that effect.
13. As already indicated, I have approached this appeal according to the parameters set out by the parties. As acknowledged by Mr Pipe at the hearing, there may nonetheless be, and I put it no higher than that, a question mark over whether Mrs Richardson-Conrad was correctly issued with a British passport. That issue is not formally before me however, and the outcome of Mr Asehene’s application would likely be the same in any event.

Notice of Decision
(i) The decision of the First-tier Tribunal involved the making of an error of law and is set aside.
(ii) The Upper Tribunal re-makes the decision by allowing Mr Asehene’s appeal against the Secretary of State’s decision dated 3 July 2023.

J Neville
Judge of the Upper Tribunal
Immigration and Asylum Chamber
14 August 2025