Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000791

First-tier Tribunal Nos: EU/55465/2023
LE/00169/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 11th of November 2025

Before

UPPER TRIBUNAL JUDGE RIMINGTON

Between

LUFTON NAHER
(NO ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Badar, instructed by instructed by Sarker Solicitors.
For the Respondent: Mr B Hulme, Senior Home Office Presenting Officer

Heard at Field House on 24th September 2025

DECISION AND REASONS
1. The appellant appeals against a determination of Judge Lester (the judge) promulgated on 20th January 2025 which dismissed the appellant’s appeal against the refusal on 11th September 2023 of the appellant’s application under the EU Settlement Scheme (EUSS) specifically under EU11, EU11A, EU14 and EU14A of Appendix EU of the Immigration Rules
The grounds of appeal
Ground 1
2. The judge states at [10] of the determination that the appellant must show she was dependent on the EEA national sponsor when she was in Bangladesh.
“10. The respondent explained that the issue is whether the appellant was dependent on the sponsor when she was living in Bangladesh. As in order to succeed under EU rules the appellant would need to show that she was a dependent parent (as set out in the refusal letter). The appellant entered the UK on a family permit which gave her entry clearance, which in turn enabled her to make this application. However, the actual issue for the tribunal is whether the appellant was dependent in Bangladesh”.
3. The appellant contends this is a material error of law and the appellant only need show that she was dependent on the sponsor at the date of application, that is on 15th May 2023.
4. ‘Dependent’ under Appendix EU states in relation to dependent parent that:
“dependent means here that:
(a) having regard to their financial and social conditions, or health, the appellant cannot or (as the case may be) for the relevant period could not, meet their essential needs (in whole or in part) without the financial or other material support of the relevant EEA citizen (or, as the case may be, of a qualifying British citizen) of the relevant sponsor”.
5. The respondent’s refusal decision which is the subject of the appeal confirmed that dependency had to be current at the date of the EUSS application.
6. In the respondent’s review the Secretary of State further reiterated the need for dependence at the date of application and not the appellant’s residence in Bangladesh as the judge had wrongly concluded.
7. The review stated: “This means that their dependency on the relevant sponsor (or on that person’s spouse or civil partner) at the date of the EUSS application has to be evidenced” (in the current tense).
8. In the recent Court of Appeal case of Secretary of State v Rexhaj [2024] EWCA Civ 784 the current position was confirmed rather than a historical one and thus whilst the appellant was in Bangladesh, for example, there is a reference to “date of application” and that the sponsor “be” dependent referring to the present tense.
“16. The upshot of all that is that the Withdrawal Agreement does not require the UK to make settlement available to parents, or parents-in-law, of EU citizens resident in the UK post-withdrawal unless they are dependent on their sponsors. That was also the position under the pre-withdrawal regime”.
…
“27. The third and fourth sections set out the ‘eligibility requirements’ for each of the four kinds of case identified at paragraphs EU2-EU3A. Paragraph EU14A is the relevant provision for cases falling under paragraph EU3A. It reads:
‘The applicant meets the eligibility requirements for limited leave to enter or remain as a joining family member of a relevant sponsor where the Secretary of State is satisfied, including by the required evidence of family relationship, that, at the date of application and in an application made after the specified date and by the required date, the condition set out in the following table is met.’
The ‘following table’ sets out a condition with three sub-paragraphs, (a)-(c). We are only concerned with sub-paragraph (a), which reads (so far as relevant):
“The applicant is:
(i) is a joining family member of a relevant sponsor; or
(ii) … .”
The ‘specified date’ is defined in Annex 1 as 11 p.m. on 31 December 2020. The “required date” has an elaborate definition but for our purposes is before 1 July 2021”.
…
“35. Mrs Rexhaj satisfied requirement (a) because she was a non-EEA citizen. As to requirement (b), ‘family member of a relevant EEA citizen’ is defined in Annex 1. The definition includes the term ‘dependent parent’. The definition has three sub-paragraphs but I need not set them out. In summary:
(1) Sub-paragraph (a) is identical to the definition in Appendix EU (see para. 29 above).
(2) Sub-paragraph (b) (i) imposes a requirement that the applicant be dependent on the relevant EEA citizen. The date at which the requirement must be satisfied depends on which of three cases the applicant falls into: in Mrs Rexhaj’s case (case (cc)) the date is the date of application. However, as in the equivalent provision of the definition in Appendix EU, the definition contained a qualification to the effect that dependency was assumed where the date of application is before 1 July 2021.
(3) I note for completeness that sub-paragraph (b) (i) is expressed as not applying where sub-paragraph (c) applies; but sub-paragraph (c) in this definition is quite different from sub-paragraph (c) of the definition in Appendix EU and has no application to Mrs Rexhaj’s case”.
…
“39. The Secretary of State’s case is straightforward. Mrs Rexhaj had to satisfy the definition of ‘joining family member of a relevant sponsor’ for the purpose of paragraph EU14A (a) (i). That definition in turn required her to satisfy the definition of ‘dependent parent’ in Annex 1. Sub-paragraph (b) (iii) of that definition explicitly incorporated a requirement that she be dependent on her sponsor: see paras. 29-30 above”.
9. Accordingly, where the appellant entered the UK under the EUSS Family Permit Rules whilst dependency cannot be assumed as per Rexhaj the relevant date in terms of dependency is the date of application and not the period when the appellant was in Bangladesh.
Ground 2
10. The appellant’s solicitor Mr Sarker who represented the appellant at the appeal, provided a witness statement dated 24th January 2025 confirming he did not argue that the relevant period of dependency was that when the appellant was in Bangladesh but rather that he made submissions that dependency related to the period when the application was made and the period when the appellant was already in the UK. The witness statement is attached and highlights material errors of law.
11. Similarly, the appellant produced documentation relating to her dependency in the UK on the sponsor including part 2 of the appellant’s witness statement.
12. There was also the evidence of the cost of care provided as well as the appellant’s bank statements, and the judge did not engage adequately or at all with the proper focus of the determination.
Ground 3
13. While it appeared that there were no arguments under the Withdrawal Agreement given that the appellant’s entry to the UK was facilitated through the granting of the EUSS Family Permit and she made an application under the EUSS Scheme and is a direct family member, the judge arguably erred in failing to consider Articles 10 and 18 of the Withdrawal Agreement.
Ground 4
14. In the alternative the appellant challenges the findings and conclusions relating to the issue of the appellant’s circumstances and dependency in Bangladesh. The judge had not adequately reasoned credibility findings especially with respect to the sponsor, Dr Rokya Zahan, who is a medical doctor and would have professional obligations. Secondly, the judge did not undertake a rounded assessment including the fact that the appellant was granted entry under the EUSS Family Permit Scheme although there was no requirement to show dependency. However, the appellant submitted evidence of dependency with that application and the appellant was dependent on the sponsor. The appellant’s entry application under the EUSS Family Permit Rules is at stitched bundle page 117. Thirdly, in the light of the extensive evidence which included money transfer receipts, a letter from Mayor and other evidence including from the appellant’s son-in-law Dr Mokarram Hossain, an associate professor in general engineering at Swansea University, the judge’s conclusion that the appellant was not dependent on the sponsor while in Bangladesh is contrary to the wealth of evidence, inadequately reasoned and irrational.
Permission to appeal grant
15. Application for permission was granted on grounds 1, 2 and 4 only and not on ground 3 as to whether the First-tier Tribunal gave adequate reasons for rejecting the evidence of the appellant’s dependency whilst she was in Bangladesh. The permission grant considered that there was no error of law that a judge failed to address an issue not raised in either written or oral submissions, nor relied upon at the hearing.
The hearing
16. At the initial hearing of an error of law before me at Field House Mr Badar attended remotely and the connectivity was very poor and communication intermittent. In the event I directed that both parties submit a skeleton argument as to the correct position legally in the light of Rexhaj together with a chronology.
17. The appellant submitted a skeleton argument dated 27th July 2025 which confirmed that the original EUSS FP application was made on 23rd November 2020, prior to the relevant date and following a refusal on 5th July 2021 the refusal was withdrawn by the respondent during an appeal, and the appellant was granted leave to enter on 8th December 2022. The appellant entered the UK on 29th March 2023 and the present EUSS application was submitted on 15th May 2023.
18. In his skeleton argument dated 27th July 2025, Mr Badar set out EU14A of Appendix EU which states:
“The applicant meets the eligibility requirements for limited leave to enter or remain as a joining family member of a relevant sponsor where the Secretary of State is satisfied, including by the required evidence of family relationship, that, at the date of application and in an application made after the specified date, the condition set out in the following table is met:
Condition Is met where:
(a) The applicant is:
(i) a joining family member of a relevant sponsor; or
…
Annex 1 of Appendix EU contains the following definitions
joining family member of a relevant sponsor
‘A person who has satisfied the Secretary of State, including by the required evidence of family relationship, that they are (and for the relevant period have been), or (as the case may be) for the relevant period (or at the relevant time) they were:
(e) the child or dependent parent of the spouse or civil partner of a relevant sponsor, as described in sub-paragraph (a) above, and all the family relationships:
(i) existed before the specified date (unless, in the case of a child, the person was born after that date ...; and
(ii) continue to exist at the date of application (or did so for the period of residence relied upon’”.
19. Mr Badar also set out the definition of dependent parent and various extracts from Rexhaj.:
“Dependent parent
(a) The direct relative in the ascending line of a relevant EEA citizen (or, as the case may be, of a qualifying British citizen or of a relevant sponsor) or of their spouse or civil partner; and
(b) (unless sub-paragraph (c) immediately below applies) dependent on (as the case may be):
(i) the relevant EEA citizen (or their spouse or civil partner) at the date of application or, where the date of application is after the specified date, at the specified date, and (unless the relevant EEA citizen is under the age of 18 years at the date of application or, where the date of application is after the specified date, the relevant EEA citizen was under the age of 18 years at the specified date) that dependency is assumed ...”.
20. The respondent submitted a skeleton argument setting out the various legal provisions in relation to EU14A and Annex 1 of Appendix EU.
21. The submission made was that the respondent noted the appellant’s supplementary skeleton argument and chronology and submitted that the appellant’s relevant sponsor for the application is their daughter and the application fell for consideration under (d)(i) and (ii) rather than (e)(i) and (ii) as submitted by the appellant at paragraph 7 of their skeleton argument. Notwithstanding that point of difference, the respondent submitted that the correct interpretation of the Immigration Rules and Rexhaj was that set out at paragraphs 7 to 11 of the appellant’s skeleton argument and the Secretary of State conceded that the appellant was required to demonstrate dependency on the relevant sponsor at the date of the EUSS application, that was 15th May 2023.
22. The respondent conceded that the judge materially erred on ground 1 in assessing dependency when the appellant was residing in Bangladesh rather than at the date of application.
23. That material error was sufficient to render the entirety of the determination unsafe.
24. It was also submitted that following Begum (Remaking or remittal) the appeal should be suitable for remittal to the First-tier Tribunal.
25. I note the definition of dependent parent; the appellant had made an Appendix (FP) EU application prior to the specified date and thus it appears that the appellant had indeed had her period of dependency assessed at the specified date and thus could be defined as a family member at that point.
26. Moreover, the Secretary of State specifically conceded notwithstanding being given the opportunity to analyse the position that the key date for assessing dependency was the date of application. The judge had failed to consider that at the appeal which was a material error of law.
27. On the basis of this I therefore set aside the decision of the First-tier Tribunal in its entirety and remit the matter to the First-tier Tribunal for redetermination.

Helen Rimington

Judge of the Upper Tribunal
Immigration and Asylum Chamber

13th October 2025