Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000855

First-tier Tribunal No: EU/51931/2024
LE/04759/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 6th of May 2025

Before

UPPER TRIBUNAL JUDGE P LODATO
DEPUTY UPPER TRIBUNAL JUDGE R FRANTZIS

Between

OUMDOU DIALLO
(ANONYMITY ORDER NOT MADE)
Appellant
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: Unrepresented (Sponsor appeared in person)
For the Respondent: Mr A McVeety (Senior Home Office Presenting Officer appeared by CVP)

Heard at Phoenix House (Bradford) on 22 April 2025

DECISION AND REASONS
Introduction
1. The Appellant appeals with permission against the decision, dated 16th December 2024 (“the Decision”), of the First-tier Tribunal (“the FtT”) to dismiss her appeal brought pursuant to the Immigration Citizens’ Rights Appeals (EU Exit) Regulations 2020.

Background
2. The broad factual background to the appeal is not in dispute between the Parties. In brief summary, the Appellant’s case is that she is entitled to enter the United Kingdom on an EU Settlement Scheme Family Permit as the biological daughter, under 21 years of age, of her father (“the Sponsor”). On 5th February 2024, the Respondent refused her application on the sole basis that the Appellant had not shown by reliable evidence that she was related to the Sponsor as claimed. The Appellant had applied (and appealed to the FtT) with another claimed relative of the Sponsor but that other application need not trouble us further.
Appeal to the First-tier Tribunal
3. The Appellant appealed against the refusal of her application and elected to have her appeal determined without a hearing.
4. In dismissing the appeal, the FtT made the following findings (where the Appellant before us is referred to as the “second Appellant”):
“11. I find that the evidence supplied is sufficient to show on a balance of probabilities that the Appellants are related to the sponsor as claimed. Although there does not seem to be the original Guinea marriage certificate, there are other documents showing the marriage between the sponsor and his wife, and there is DNA evidence linking his wife to her mother. The second Appellant‘s birth certificate does name the sponsor, and although one of the names is abbreviated to an initial, I accept that the form is short and does not allow for the full name to be stated there.
12. However, I do not find that the evidence supplied is sufficient to show that the Appellants are dependent on the sponsor to meet their essential living needs. The income and expenditure sheets for the first Appellant refer to ‘family support’ as her main source of income, and then refer to ‘daughter support’ as other income. This is not precise enough to show that the first Appellant relies on the moneys sent by the sponsor to meet her essential living needs. There is also no real evidence before me of the circumstances of the second Appellant, so that I cannot be satisfied that she is dependent financially on the sponsor to meet her essential living needs.”
Appeal to the Upper Tribunal
5. The Appellant’s grounds for permission to appeal contend that in dismissing the Appellant’s appeal the FtT had erred in law by requiring her to meet a test of dependency which was not a requirement of the relevant Immigration Rule contained in Appendix EU (FP).
6. On 18th February 2025 a different judge of the FtT granted permission to appeal to this Tribunal.
7. In the Respondent’s Rule 24 Response to the Notice of Appeal, it was conceded that the FtT had erred in law in a material way such that the Decision to dismiss the appeal could not stand. The Respondent went on to argue that the appeal should be remitted to the FtT for full oral re-hearing for reasons which we set out in more detail below.
Discussion
8. The Sponsor appeared before us. Shortly before the hearing he had requested a French interpreter which the Tribunal was unable to facilitate at such short notice. We explained this to the Sponsor who, it was evident, had a limited command of English but was able to express himself.
9. The Upper Tribunal is not bound by the Respondent’s concession that the Decision involved a material error of law. However, the fact that there is no dispute between the Parties necessarily functions as an important factor in our assessment. For the reasons that we set out below, we are satisfied that the concession was properly made.
10. There is no dispute between the Parties that the sole reason given by the Respondent in the refusal letter was that the Appellant had not shown by reliable evidence that she was related to the Sponsor as claimed.
11. It is common ground that the applicable Immigration Rule is Appendix EU (FP) FP6(1) and subsequent definitions. The term “child” referenced therein is defined, where relevant, as the direct descendant under the age of 21 of the relevant EEA Citizen. Whilst there is a requirement to show dependency on a relevant EEA Citizen for those direct descendants over the age of 21, the same is not expected of those under 21. The Appellant was, at the time her application, under the age of 21. As such, the FtT materially erred in finding that “There is also no real evidence before me of the circumstances of the second Appellant, so that I cannot be satisfied that she is dependent financially on the sponsor to meet her essential living needs” [12].
12. In those circumstances, as Mr McVeety readily accepted, the Decision dismissing the appeal cannot stand.
Disposal
13. We took some time to discuss with Mr McVeety what the consequences of a finding as set above should be: the FtT had made a finding on the single contentious issue that the Appellant was related to the Sponsor as claimed.
14. Having taken time to consider the matter and, consistent with the Rule 24 Response, Mr McVeety invited us to remit the matter to be re-heard by the FtT at an oral hearing with no findings of fact preserved. That was because Respondent had been precluded from investigating and responding to the Appellant’s evidence before the FtT which was uploaded late onto the HMCTS platform on 18th November 2024. This was after the Respondent’s Review dated 8th November 2024 which had noted that: “The R is content for the appeal to proceed on the papers. However, should fresh evidence be uploaded by the A’s representatives after the date of this review and prior to the scheduled hearing, the R reserves the right to consider whether the appeal should be listed for an oral hearing. The R respectfully requests the Tribunal notify the R of any such submissions to allow the R an appropriate consideration as to how the appeal should proceed.”
15. The Respondent, consequently, has had no opportunity to challenge the Appellant’s evidence at an oral hearing. Mr McVeety explained that there were issues with the documentary evidence that the Respondent would wish to put to the Sponsor.
16. In all of the circumstances, taking account of the Sponsor’s stated wish to have the appeal resolved by the Upper Tribunal, we are persuaded in light of the procedural concerns raised by the Respondent that fairness dictates this matter be remitted to the FtT with no findings of fact preserved. The sole factual issue to be determined is whether the Appellant is related to the Sponsor as claimed.

Notice of Decision
The Decision of the FtT involved a material error of law. We allow the appeal and set aside the Decision. We remit the appeal to be re-heard by the FtT with no findings of fact preserved.

Roxanne Frantzis
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

25th April 2025