Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-002081

First-tier Tribunal No: EU/55546/2023
LE/03158/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
31st October 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE SKINNER

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

HADIA ATHER SHAIKH
(NO ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Mr Edward Terrell, Senior Home Office Presenting Officer
For the Respondent: Mr Asad Maqsood, Counsel, instructed by Greystone Solicitors Ltd

Heard at Field House on 15 September 2025

DECISION AND REASONS
Introduction
1. The Respondent (“Ms Shaikh”) is a national of Pakistan, born in 1998. She applied for leave to remain under the EU Settlement Scheme, which application was refused by a decision of the Secretary of State (“the SSHD”) dated 14 September 2023. She appealed to the First-tier Tribunal (“the FTT”) and, by a decision promulgated on 14 March 2025, the FTT allowed her appeal (“the 2025 FTT decision”). The SSHD now appeals, with permission, to the Upper Tribunal.
2. It will be necessary in this decision to refer to various members of Ms Shaikh’s family. For convenience, and without intending any discourtesy, I will refer to them by their first names.
3. The FTT allowed the appeal on the basis that the SSHD’s decision was in breach of the UK’s obligations under the Agreement on the withdrawal of the United Kingdom from the European Union (“the Withdrawal Agreement”).
4. On this appeal, the SSHD contends that the FTT was wrong so to conclude, because, in short, the Judge was required, but failed, to consider whether Ms Shaikh fell within the scope of Article 10 of the Withdrawal Agreement as at 31 December 2020. Had he done so, the SSHD submits that the inevitable conclusion would have been that she did not. The reason for this was that (as is uncontroversial) Ms Shaikh’s younger sister, Aneqa, turned 18 prior to that date. The SSHD accordingly invites the Tribunal to allow her appeal and to re-make the underlying appeal by dismissing it.
5. There was no dispute that the FTT did not consider whether Ms Shaikh fell within the scope of Article 10 as at 31 December 2020. However, Ms Shaikh’s case, as presented by Mr Maqsood, was that:
a. It was not necessary, as a matter of law, for Ms Shaikh to fall within Article 10 of the Withdrawal Agreement as at 31 December 2020. Rather, what mattered was whether she had resided for any period of time in accordance with Union law prior thereto, which it was not disputed she had.
b. If that was wrong, Mr Maqsood made four alternative submissions:
i. First, that Aneqa’s 18th birthday was not the point in time at which Ms Shaikh ceased to reside in the UK in accordance with Union law. It was said that Aneqa’s 21st birthday was the moment when this occurred, and that, as Aneqa was 18 on 31 December 2020, Ms Shaikh was residing in accordance with Union law as at that date.
ii. Second, there was an issue estoppel created by an earlier decision of the FTT or the grant of leave subsequent thereto, which prevents the SSHD from denying Ms Shaikh’s residence was in accordance with EU law.
iii. Third, it was irrational to refuse Ms Shaikh leave when her materially indistinguishable brother, Muhammed, had been granted leave to remain and is to be inferred from the grant of leave to Muhammed that Ms Shaikh was also entitled to leave under the Withdrawal Agreement.
iv. Fourth, as the argument now advanced by the SSHD was not put forward before the FTT (or, it might be added, in the decision), it was not open to the SSHD to advance the case now.
6. The parties’ submissions, summarised above, seem to me to give rise to the following four broad issues for determination:
a. Issue 1: Is the SSHD prevented from arguing that the 2025 FTT decision wrongly failed to assess whether Ms Shaikh was residing in accordance with Union law as at 31 December 2020 because either (i) she is estopped from doing so, or (ii) she did not argue the point below?
b. Issue 2: Is the SSHD correct that the FTT was required to assess whether Ms Shaikh was residing in accordance with Union law as at 31 December 2020?
c. Issue 3: Is the SSHD correct that Ms Shaikh was not residing in accordance with Union law as at 31 December 2020 because Aneqa was by then over 18?
d. Issue 4: Is it to be inferred from the fact that Muhammed was granted leave and is in a materially indistinguishable situation to Ms Shaikh that she must be entitled to leave under the Withdrawal Agreement?
7. These issues are not entirely straightforward, and I am grateful to both Mr Terrell and Mr Maqsood for their assistance in relation to them.
8. Before setting out my reasoning in detail, it is necessary to say a little more about the background giving rise to this appeal.
Background
9. Ms Shaikh’s younger sister, Aneqa, is an Irish citizen who at all relevant times has resided in the UK as a self-sufficient person and was therefore, prior to Brexit, exercising her free movement rights under EU law. Aneqa was born in 2002 and so, in 2015, when she was aged 13, their father, Ather, came to the UK from Pakistan, initially on a visitor’s visa, to look after her. He then applied for and was granted a residence card on the basis that he had a derivative right of residence under EU law, as Aneqa’s primary carer.
10. In 2017, Ms Shaikh and her brother, Muhammad, together with their now sadly late mother, Hajira, applied to come to the UK to join Aneqa and Ather. This application was refused by the SSHD in January 2018. They appealed on the basis that Hajira was also Aneqa’s carer, without the presence of whom Aneqa’s free movement rights would not be effective and they were all part of a family unit. The appeal was allowed by the FTT and the SSHD did not challenge that decision. I shall need to say something further about this decision (“the 2019 FTT decision”) below.
11. On 7 August 2019, EEA family permits were accordingly issued and, on 29 August 2019, Ms Shaikh, Muhammed and Hajira entered the UK. Ms Shaikh and Muhammed have resided in the UK since and I understand that Hajira did so until she passed away in 2022. Ms Shaikh’s family permit was valid until 7 February 2020.
12. In due course Ms Shaikh, Ather, Hajira and Muhammed each made applications for pre-settled status under the EU Settlement Scheme. On 5 February 2020, the SSHD granted Aneqa’s and Hajira’s application. On 27 February 2020, she granted Muhammed’s application. Ms Shaikh’s and Ather’s applications were however refused as invalid on the basis that they had not made the application in the proper form.
13. On 26 October 2020, Ms Shaikh and Ather submitted further applications. On 9 June 2021, the SSHD granted Ather’s application but refused Ms Shaikh’s. According to Mr Maqsood’s skeleton argument, Ms Shaikh’s refusal was sent to the wrong email address and so she did not receive the decision at that time. By the time the error had come to light, the time period for appealing had expired. She sought to appeal out-of-time, but was refused an extension of time. Consequently, on 4 August 2023, Ms Shaikh submitted a further application (again under the EU Settlement Scheme), and it is the refusal of this application, on 14 September 2023, which gave rise to these proceedings.
The 2019 FTT decision
14. Given the relevance of the 2019 FTT decision to the question of what sort of right Ms Shaikh exercised in the UK and to her arguments in relation to estoppel, it is necessary to consider it in a little detail.
15. The appellants were, as noted, Hajira, Ms Shaikh and Muhammed. As was recorded in para.11 of the determination, they accepted that they could not meet the requirements of the Immigration (European Economic Area) Regulations 2016 (“the 2016 Regulations”), but submitted that they were entitled to entry as a matter of directly effective EU law as a result of the ECJ’s decision in C-200/02 Chen and others v Secretary of State for the Home Department [2005] QB 325. While Chen was not about a 2-parent situation, it was submitted on their behalf that Reg 16(8) of the 2016 Regulations amounted to recognition by the SSHD that it could apply where there were two joint primary carers, and this was notwithstanding the fact that in such a scenario the absence of one carer would not require the child to leave the UK. The sole reason, it was said, that Hajira did not meet the requirements of the 2016 Regulations was that she was not entering the UK at the same time as Ather. As to Ms Shaikh and Muhammed, it was noted that they were both adults and neither claimed to be Aneqa’s primary carer. However, Muhammed was a minor at the date of the application and therefore would have fallen within the ambit of Reg 16(6) but for Ather already having acquired a derivative right of residence. He and Ms Shaikh, it was submitted, continued to be part of the family unit and to enjoy family life with their parents and the sponsor and in all the circumstances refusal of entry would be disproportionate.
16. At para. 14 the FTT accepted that “The reality in this case is that if the lead appellant, who is the mother of the EEA national, entered the United Kingdom with her husband, both those parents would have acquired a derivative right of residence simultaneously, and in such circumstances there would have been a recognition of such by the Respondent. The reality also is that both parents did not enter the United Kingdom together. Since the father of the sponsor was already resident in the United Kingdom with a derivative right of residence the lead appellant (mother) was excluded by reference to Regulation 16(1)) since that care responsibility was shared at best.”
17. At para.15 the FTT noted that rights of entry under the Chen principle are derived from EU law and that national courts are obliged to recognise them, which is uncontroversial, and at para 16 the FTT set out the relevant part of the Regulations dealing with derived rights of residence.
18. At para. 17, the FTT then stated:
“The Respondent should recognise by reference to Regulation 16(8) that the Chen principle was applicable where there were two joint primary carers, notwithstanding the fact that in certain circumstances the absence of one carer from the United Kingdom, would not require the relevant child to leave the United Kingdom. Indeed, such a recognition as to the possibility of joint primary carers was in keeping with the right to respect for family life by reference to Article 7 of the Charter, which in itself reflected the obligation under Article 24(2) to treat the best interests of the child as a primary consideration, and the rights of that particular child to have direct contact with both parents, unless this would be contrary to that child’s best interests. In making an assessment as to such best interest factors such as the age of the child, together with the physical and emotional development and emotional ties to both parents should be taken into account, as well as the impact of separation on that child’s welfare.”
19. Para 18 of the 2019 FTT decision repeats the point that EU derivative rights of residence could not be defeated by provisions of national law. At para. 19-21 the FTT turned to its application of the law to the facts. These paragraphs merit setting out in full:
“19. The sponsor is a minor exercising her right of residence in the UK as a self-sufficient person, whilst her father in the United Kingdom is her carer on a day to day basis in order to facilitate this right of residence. If the Respondent was to refuse an EEA family permit to the sponsor's mother, the result would be that the sponsor, her daughter, would be deprived of direct personal contact with one of her parents, with whom I am satisfied on the evidence before me, she has an equally close relationship, and who would be the sponsor's joint primary carer were the mother permitted to enter the United Kingdom. This I am satisfied would not be in the sponsor's best interests.
20. Whilst the second and third appellants are now adults, and neither of them are the primary carer of the sponsor, the third appellant [Muhammed] was in fact a minor at the date of application, and therefore would have fallen within Regulation 16(6), if it were not for the father having already gained a derivative right of residence. The sponsor is now in a position where she must continue to exercise her right of free movement in the United Kingdom without the benefit of one of her parents, namely her mother, or alternatively, losing this right of residence in the EU by reference to Article 20 of the Charter. Article 20 stated that any assessment must take into account, the best interests of the child and all the specific circumstances, including the age of the child, the child's physical and emotional development, the extent of his emotional ties both to the union citizen parent and to the third country national parent, and the risks which separation from the latter might entail for the child's equilibrium. I have no doubt that the sponsor is equally attached to her mother (lead appellant) and her father (in the United Kingdom). If the sponsor had to return to Pakistan this would deprive her right of residence in the EU and the right of free movement without the benefit of one of her parents, and this would be contrary to the free movement directive and the rights of the sponsor by reference to Articles 7 and 24. Furthermore, a continued separation from the sponsor's mother would impact on her continued education in the United Kingdom as well as maintaining a relationship between mother and daughter. The Upper Tribunal in the decision of Abdul (Section 55 - Article 24(3) Charter) (2016) UKUT 00106 (IAC) was of the opinion that Article 24 (3) created a free standing right. The Tribunal considered it clear that Article 24 (3) was designed to create a discrete right, an analysis which was harmonious with the general principles of EU law.
21. I found the evidence of the sponsor to be genuine and reliable. For the past more than three years she is in daily telephone contact with her mother in Pakistan. Even with this geographical separation I am satisfied that the mother is involved in a meaningful fashion in the light [sic] of her daughter in this country. The fact that the father is financially responsible for the daughter is not of relevance and due to the distance separating mother from daughter there is little more that the mother can do other than keeping in such regular contact with her daughter in the United Kingdom. The best interests of the child are for her mother to join her in the United Kingdom and the principle under EU law and Chen recognise that there can be two joint primary carers even though one such parent/ carer did not arrive in the United Kingdom at the same time, and I would only reiterate, if both the parents had arrived in the United Kingdom simultaneously both parents would have acquired a derivative right of residence and this would have been recognised by the Respondent. Having considered all the evidence before me I am satisfied that the decision of the Respondent is disproportionate under EU law and that these appeals should all be allowed.”
20. The 2019 FTT decision is not under appeal before me and it is not therefore necessary or appropriate to enter into a detailed discussion of the reasoning in it. However, I note that the FTT did not carry out any analysis of the basis on which Ms Shaikh and Muhammed have an EU law (or any other) entitlement to reside in the UK. The closest it got to doing so was in respect of Muhammed, who it noted was a child at the date of the application and would have been entitled to leave if Ather did not already have a right to reside. It does not however then go on to explain what the effect of that is and why that leads to his appeal being allowed. As for Ms Shaikh, the 2019 FTT decision is silent as to why her appeal was allowed, other to say in passing at the very end the decision was “disproportionate under EU law”.
21. Be that as it may, the SSHD did not appeal the 2019 FTT decision and Mr Terrell accepted for the purpose of this appeal that Ms Shaikh must have been found to have been entitled to some form of derivative right of residence as a result of the exercise of Aneqa’s free movement rights. I note that this is consistent with the SSHD’s position, in so far as it can be gleaned from such a document, contained on her EEA Family Permit, which records that this was “to join A A Shaikh” (i.e. Aneqa).
The SSHD’s decision
22. As already noted, the SSHD refused Ms Shaikh’s application on 14 September 2023. The operative reasoning was that, while she claimed to have been a person with a derivative right to reside throughout the period 29 August 2019 to 4 August 2023, she did not in fact have such a right, because at 11pm on 31 December 2020 and at the date of her application, she (that is, Ms Shaikh) was not under the age of 18. Nothing was said about the fact that Aneqa was also over 18 at both of those dates.
The 2025 FTT decision
23. Ms Shaik’s appeal to the FTT against the SSHD’s decision was put on two bases: first, it was said that the decision was not in accordance with the scheme rules; and second, that it was not in accordance with the Withdrawal Agreement.
24. In relation to the scheme rules, the FTT noted that “The Appellant is relying on her status as the child of her sister’s primary carers to assert her derivative right. In order to meet the relevant part of the definition, which is set out in sub-paragraph (d), she must have been under 18 throughout her qualifying period (unless she had previously been granted limited leave to enter or remain under paragraph EU3). It is not in dispute that she was over 18 throughout the qualifying period upon which she relies, and she has not previously been granted leave under EU3. The Respondent’s decision was therefore in accordance with the Rules.” There is no challenge to this aspect of the FTT’s decision before me.
25. As to the argument that the decision breached the Withdrawal Agreement, the FTT stated as follows:
“18. The Personal Scope of Part Two of the Withdrawal Agreement (which includes Chapter One) is set out in Article 10.
19. By virtue of paragraph [sic] Article 10.1(e)(ii), Part Two applies to “family members” of Union citizens who exercised their right to reside in the UK before the end of the transition period, provided “they resided in the host State in accordance with Union law before the end of the transition period and continue to reside there thereafter.”
20. Ordinarily “family members” as defined by Article 2(2) of Directive 2004/38/EC would not include siblings, however the definition of “family members” under Article 9 of the Withdrawal Agreement also includes:
persons other than those defined in Article 3(2) of Directive 2004/38/EC whose presence is required by Union citizens or UK nationals in order not to deprive those Union citizens or UK nationals of a right of residence granted by this Part
21. This is the basis upon which the Appellant’s entry was originally facilitated by the Respondent i.e. to prevent her sister, an EU Citizen, from being deterred from exercising her right of free movement. The Appellant therefore falls within the Personal Scope of Chapter One as defined in Article 10. She is the beneficiary of the residence rights contained therein and the Respondent’s decision to refuse her leave to remain is in breach of those rights.
22. I am fortified in this interpretation by the fact that the Appellant’s brother, Muhammad Shaik, also entered the UK on an EEA Family Permit alongside the Appellant and made an application for EUSS leave at the same time. His application was granted by the Respondent even though he was also over 18 throughout the qualifying period upon which he relied. As he did not meet the relevant requirements of Appendix EU, the only lawful basis for the Respondent granting the brother’s application must have been that to refuse it would have been a breach of his rights under the Withdrawal Agreement. The Appellant’s application should have been granted on the same basis.”
26. As can be seen from the above, the FTT’s core reasoning was: (i) the basis upon which Ms Shaikh was originally granted leave was to prevent her sister from being deterred from exercising her right of free movement, (ii) persons whose presence is required in order not to deprive Union citizens of their rights of residence under the Withdrawal Agreement, therefore (iii) it is a breach of Ms Shaikh’s rights under the Withdrawal Agreement to refuse her application.
27. Even assuming that (i) is a correct description of the reasoning in the 2019 FTT decision, there is a logical disconnect in this chain of reasoning: the fact that someone’s presence was required for a particular purpose does not mean that it still is required. Whether that is nonetheless a legally valid process of reasoning depends on a close analysis of the legal framework, to which I now turn.
Legal framework
The Withdrawal Agreement
28. Article 13 of the Withdrawal Agreement grants residence rights to certain UK, EU and third country nationals. Third country nationals, such as Ms Shaikh, are dealt with by Art 13(3), which provides:
“Family members who are neither Union citizens nor United Kingdom nationals shall have the right to reside in the host State under Article 21 TFEU and as set out in Article 6(2), Article 7(2), Article 12(2) or (3), Article 13(2), Article 14, Article 16(2), Article 17(3) or (4) or Article 18 of Directive 2004/38/EC, subject to the limitations and conditions set out in those provisions.”
29. Thus, in order for Ms Shaikh to qualify for residence under the Withdrawal Agreement she must be a “family member”. The definition of family members for the purpose of this Part of the Withdrawal Agreement is found in Article 9(a). It provides:
“’family members’ means the following persons, irrespective of their nationality, who fall within the personal scope provided for in Article 10 of this Agreement:
(i) Family members of Union citizens or family members of United Kingdom nationals as defined in point (2) of Article 2 of Directive 2004/38/EC of the European Parliament and of the Council;
(ii) persons other than those defined in Article 3(2) of Directive 2004/38/EC whose presence is required by Union citizens or United Kingdom nationals in order not to deprive those Union citizens or United Kingdom nationals of a right of residence granted by this Part”.
30. It is correctly not suggested that Ms Shaikh falls within the scope of Article 9(a)(i), as the definition of family members as defined in Article 2(2) of Directive 2004/38/EC does not include the sibling of a Union citizen.
31. As for Article 9(a)(ii), it is not contended that Ms Shaikh is excluded from this provision by falling within the scope of Article 3(2) of Directive 2004/38/EC. For the purposes of this provision, for Ms Shaikh to be a “family member” of Aneqa: (i) her presence must be required by Aneqa in order not to deprive her of a right of residence granted by the Withdrawal Agreement; and (ii) as set out in the chapeau, she must fall within the personal scope provided for in Article 10.
32. So far as relevant, Article 10 provides:
“1. Without prejudice to Title III, this Part shall apply to the following persons:
(a) Union citizens who exercised their right to reside in the United Kingdom in accordance with Union law before the end of the transition period and continue to reside there thereafter;
…
(e) family members of the persons referred to in points (a) to (d) provided that they fulfil one of the following conditions:
(i) they resided in the host State in accordance with Union law before the end of the transition period and continue to reside there thereafter;…”
33. There is no dispute that Aneqa was at all times exercising her right to reside in the UK in accordance with Union law. Drawing the above together, the conditions required for Ms Shaikh to be entitled to a residence right under Article 13 are therefore:
a. Her presence is required so as not to deprive Aneqa of her right of residence granted under the Withdrawal Agreement (Art 9(a)(ii)); and,
b. Ms Shaikh resided in the UK in accordance with Union law before the end of the transition period and continued to do so thereafter (Art 10(1)(e)(i)).
The Chen derivative right of residence
34. Ms Shaikh case is that her right to reside in the UK in the accordance with Union law prior to Brexit derives from the principle in Chen, cited above. At [47] of the ECJ’s decision in that case it was said that the predecessors to Article 21 TFEU and Directive 2004/38/EC:
“confer on a young minor who is a national of a member state, is covered by appropriate sickness insurance and is in the care of a parent who is a third-country national having sufficient resources for that minor not to become a burden on the public finances of the host member state, a right to reside for an indefinite period in that state. In such circumstances those same provisions allow a parent who is that minor’s primary carer to reside with the child in the host member state.”
35. The parent’s derivative right in such cases was explained in C-86/12 Alokpa v Ministre du Travail, de l’Emploi et d l’Immigration [2017] 1 CMLR 40 as follows:
“a refusal to allow a parent, whether a national of a member state or of a third-country, who is the carer of a minor child who is a Union citizen to reside with that child in the host member state would deprive the child’s right of residence of any useful effect, since enjoyment by a young child of a right of residence necessarily implies that the child is entitled to be accompanied by the person who is his primary carer and accordingly that the carer must be in a position to reside with the child in the host member state”.
36. This passage was repeated by the CJEU in C-115/15 Secretary of State for the Home Department v A [2017] QB 109 at [80] and in virtually identical terms by the Grand Chamber in C-165/14 Rendón Marín v Administración del Estado [2017] QB 495 at [51]. As recently as 8 May 2025, in its decision in C-130/24 YC v Stadt Wuppertal [2025] CMLR 19 the Court described the right deriving from Chen at [23] as one which “allows a parent, who is a third-country national and the primary carer of a child who is a Union citizen, to reside with that child in the host Member State”. While YC was decided after 11pm on 31 December 2020, it is, for reasons set out below, relevant to my decision and I am therefore entitled to have regard to it under s.6(2) of the European Union (Withdrawal) Act 2018.
37. It is also worth noting that in the context of a derivative right as a carer of a child in education, the CJEU has said that “children who have reached the age of majority are in principle assumed to be capable of meeting their own needs”, but that, in the context of that derivative right, “the right of residence of a parent who cares for a child exercising the right to education in the host member state may nevertheless extend beyond that age, if the child continues to need the presence and the care of that parent in order to be able to pursue and complete his or her education”: Ibrahim v Harrow LBC [2010] PTSR 1913 at [86].
Analysis
38. I can now turn to the four issues set out at para. 6 above, which I address in turn.
Issue 1: Entitlement to argue the point
Issue 1(a): Estoppel
39. The existence, boundaries and effect of estoppel in public law are ill-defined and controversial. See e.g. R (Reprotech Ltd) v East Sussex CC [2002] UKHL 8, [2003] 1 WLR 348 at [33]-[35] and DN (Rwanda) v Secretary of State for the Home Department [2020] UKSC 7, [2020] AC 698 at [60]-[64]. However, the Court of Appeal has recently held that decisions of statutory tribunals in immigration cases may in principle give rise to issue estoppels: R (Tomlinson) v Secretary of State for the Home Department [2025] EWCA Civ 253, [2025] KB 547.
40. However, Falk LJ (with whom Bean and Andrews LJJ agreed) made clear at [66(c)] that where an issue estoppel is relied upon, this “requires an identity of issue”, which “will very commonly not be the case in an immigration context, because the relevant matter…is being assessed at a different time and in the light of the then prevailing circumstances.”
41. This is in my judgment a complete answer to Ms Shaikh’s suggestion that the 2019 FTT decision gave rise to an issue estoppel as to either her right to a derivative right of residence, or as to the facts required to be proved to give rise to such an entitlement. In so far as the 2019 FTT decision determined that Ms Shaikh’s presence in the UK was required for her sister to be able to exercise her free movement rights, that constituted an assessment of the situation in 2019, whereas the FTT in 2025 was required to assess those issues at that later time.
42. In those circumstances, while the approach to previous decisions set out in the Devaseelan line of cases could, as Falk LJ went on to say in [66(c)] of Tomlinson, in principle have had some relevance had the FTT sought to assess the position in 2025, issue estoppel cannot assist Ms Shaikh here in relation to the 2019 FTT decision.
43. Mr Maqsood also sought to suggest that there was some form of estoppel or other bar in relation to the previous grant to Ms Shaikh of a family permit, which prevented the SSHD from denying that she had had a valid right of residence. In his skeleton argument he prayed in aid the Court of Appeal’s decision in Vasa v Secretary of State for the Home Department [2024] EWCA Civ 777.
44. Vasa is a case on very particular facts. Stamps in the appellants’ passports recorded that they had been admitted to the UK under the 2016 Regulations. Such stamps were not themselves however a type of document that could be issued under those Regulations and there was therefore a dispute about whether through the stamping of the passport their residence had been facilitated for the purpose of the Withdrawal Agreement. At [58], Lewis LJ held that what the effect of the stamps was to be determined by what a reasonable person would understand the decision of the immigration officers to mean. Considered objectively, a reasonable person would understand the stamps to record a decision that the appellants were each allowed to come into the UK and live there with their respective relative who was a national of an EU member state.
45. Notably, the Court did not hold that the stamps would be taken to be some form of acceptance of the existence of any underlying factual circumstances that might normally be expected to give rise to such a decision.
46. There are in my view two difficulties for Mr Maqsood in relation to this part of his case.
47. First, this is not a case like Vasa where the SSHD issued the wrong document. Ms Shaikh was properly issued a family permit under Reg 12 of the 2016 Regulations and its effect is therefore that which is set out in the Regulations. There is in those circumstances no need to ask what a reasonable person would consider the effect of it to be, as that is answered in the legislation (or, which amounts to the same thing, to the extent that the question needs to be asked, a reasonable person would inevitably consider that the effect of the document was that provided for in the legislation). Either way, there is nothing in the 2016 Regulations which might indicate that the grant of a family permit was indicative of some acceptance by the SSHD of the validity of the underlying factual circumstances. Indeed, Reg 22 is inconsistent with that. Reg 22 expressly permits the SSHD to invite the holder of a family permit to provide evidence to support the existence of a derivative right to reside where she has reasonable doubt as to whether the holder has such a right.
48. I should note that I was taken by Mr Terrell to Reg 20(5), which provides, inter alia, that a derivative residence card is (a) proof of the holder’s derivative right to reside on the day of issue and (b) no longer valid if the holder ceases to have a derivative right to reside under regulation 16. However, Ms Shaikh was granted a family permit, not a residence card, and there is no equivalent provision in relation to family permits. I do not think any assistance can therefore be derived from Reg 20(5).
49. Second, while the grant of a family permit might, as in Vasa, reasonably be taken to indicate that a decision was taken to permit Ms Shaikh to enter the UK and to reside here for a period, I do not consider that a reasonable person would consider that it formed some sort of indication as to the subsistence of the underlying state of affairs which would justify its grant. Secondly, even if that were wrong, I do not consider that a reasonable person would consider that the grant of a family permit could amount to any sort of indication as to the underlying state of affairs beyond the period of its validity. In this case, that is until 7 February 2020. Since then Ms Shaikh has had no document from the SSHD which might be taken to indicate any form of acceptance by the SSHD that she had any form of right to reside in the UK or that there were facts which might entitle her to such a document.
50. In the circumstances, I do not consider that the SSHD is estopped or otherwise prevented from arguing that Ms Shaikh did not have a derivative right of residence by virtue of either the 2019 FTT decision or the grant of her family permit.
Issue 1(b): Not argued below
51. Mr Maqsood seems to me to be correct when he submits that the point which the SSHD now relies on (that there was no assessment of whether Ms Shaikh was residing in accordance with Union law on 31 December 2020) was not one taken below.
52. However, this appears to be either because the point in relation to Ms Shaikh’s rights under the Withdrawal Agreement separate to her eligibility under the EU Settlement Scheme was not raised by her in substance at all (and was effectively raised for the first time by the FTT in its decision) or because it was raised for the first time at the hearing before the FTT. There was a passing reference to the Withdrawal Agreement in para 14(i) of the Appeal Skeleton Argument before the FTT, but no argument was developed at all in relation to it. It is therefore unsurprising that it was not separately addressed by the SSHD in her Respondent’s Review.
53. If the point was effectively taken by the Judge of his own motion in the 2025 FTT decision then the SSHD’s first opportunity to develop her response to it was in her grounds of appeal. If Ms Shaikh addressed the applicability of the Withdrawal Agreement before the FTT, the SSHD had a choice, either to seek an adjournment to be able to formulate submissions in response, or to press ahead in the hope that those submissions would be unnecessary, and thus to avoid wasting Tribunal and party time and cost.
54. In those circumstances, I do not consider that the SSHD should be precluded now from advancing the case which she does on the basis that the point was not taken below.
Issue 2: Did the FTT err in not assessing whether Ms Shaikh was residing in accordance with Union law as at 31 December 2020?
55. As already noted, Mr Maqsood’s submission on this issue was that it sufficed that Aneqa had resided in accordance with EU law at any time prior to the end of the transition period and that it was not therefore necessary for the FTT to assess the situation at the end of that period. He relied on the phrase “before the end of the transition period” in Article 10(1)(e)(i). He also relied on the pre-amble to the Withdrawal Agreement stating “RECOGNISING that it is necessary to provide reciprocal protection for Union citizens and for United Kingdom nationals, as well as their respective family members, where they have exercised free movement rights before a date set in this Agreement…” He submitted that the use of the perfect tense (“have exercised”) was consistent with his interpretation of Article 10(1)(e)(i).
56. I am unable to accept this. In my judgment, the ordinary meaning of Article 10(1)(e)(i) in its context and in the light of the object and purpose of the Withdrawal Agreement (see Article 31(1) of the Vienna Convention on the Law of Treaties (“VCLT”)) is “resided in the host State in accordance with Union law [immediately] before the end of the transition period and continued to reside there thereafter”, and not “resided in the host State in accordance with Union law [at some point] before the end of the transition period and continued to reside there thereafter”. This is for the following reasons:
a. First, the use of the word “continued” in Article 10(1)(e)(i) is an important textual clue as to what is meant. Someone who resided in a host State in accordance with Union law, but then ceased to do so prior to the end of the transition period would not have then “continued” to do so thereafter. There would have been a break, not a continuation of the required state of affairs, namely residence in accordance with EU law.
b. Second, other provisions of the Withdrawal Agreement indicate that the intention was to preserve rights held on the last day of the transition period. In particular,
i. Article 185 brought Part Two into force “as from the end of the transition period”, which (as Lane J noted in R (Ali) v Secretary of State for the Home Department [2023] EWHC 1615, [2024] 1 WLR 1409 at [85]) suggests it focuses on the position of an individual immediately before and after the expiry of the transition period.
ii. Likewise, Article 6(1) defines references to “Union law” as meaning “Union law, including as amended or replaced, as applicable on the last day of the transition period.” It is extremely difficult to see why the drafters would have wished the lawfulness of someone’s residence to be assessed by reference to the law as it did not stand at the time of that residence.
c. Third, I do not accept that the recitals militate in favour of any other conclusion. Indeed, if anything, the recital on which Mr Maqsood relies is consistent with the above analysis, as there was no need to provide “protection” to those who had, at the end of the transition period, no right under EU law to reside in the UK or the EU member states, as the case may be. Rather, those who required protection were those who stood to lose the rights they were exercising at the end of the transition period.
57. I have reasoned the above simply by reference to the Withdrawal Agreement itself. I was not referred to any binding authority on the point. I was however referred by Mr Terrell to the decision of Lane J in R (Ali) v Secretary of State for the Home Department [2023] EWHC 1615, [2024] 1 WLR 1409 which was said to have decided the issue. Ali was about third country national children who were dependent on EU national parents (so the opposite situation to that in a Chen case such as this) and the provisions of the Withdrawal Agreement that the Court was required to interpret were not exactly the same as in this case. It is accordingly not directly on point. Nonetheless, Lane J considered the meaning of “before the end of the transition period” in the Withdrawal Agreement and I am fortified as to the correctness of my analysis above as his reasoning is, as I see it, and so far as relevant (see in particular [82]-[83], [85]-[86]), consistent with my own. I was told that Ali went to the Court of Appeal, but that the parts that were said to be relevant to this question were not the subject of or considered in that appeal.
Issue 3: Did Ms Shaikh cease to reside in accordance with Union law on Aneqa’s 18th birthday?
58. The question here is whether on Aneqa’s 18th birthday, which is common ground was prior to the end of the transition period, any derivative rights of residence held by Ms Shaikh ceased.
59. In relation to this question, Mr Terrell took me to Reg 16(2) of the Immigration (European Economic Area) Regulations 2016, which set out the criteria which the SSHD applied when considering whether someone was entitled to a Chen derivative right to reside under the 2016 Regulations. This required the EEA national to be under the age of 18 in order to be granted such a right. However, as Mr Terrell accepted, the grant of a family permit (or other relevant document) under the 2016 Regulations was only declaratory of the underlying right, not constitutive of it and, in accordance with M (Chen Parents: source of rights) Ivory Coast [2010] UKUT 277 (IAC) national law cannot cut down EU law rights. It is therefore necessary to consider this question by reference to the terms in which the ECJ/CJEU have described the circumstances in which the Chen right arises.
60. As set out above, in Chen itself, the ECJ described this right as applying to the primary carer of “a young minor”. In the subsequent cases, the CJEU (including the Grand Chamber) have described the Chen right as applying to the parent of “a minor child” or “a child”. This is consistent with the principle set out in Ibrahim, that “children who have reached the age of majority are in principle assumed to be capable of meeting their own needs”.
61. For these authorities, it is clear, in my judgment, that the Chen derivative right, at least in the absence of some exceptional circumstance, ceases when a child reaches the age of majority, which, in the UK is 18. I say “in the absence of some exceptional circumstance” because I can see that there might be argument as to whether, for example, some very disabled but financially self-sufficient EU citizen exercising their free movement rights might require the grant of a derivative right to their parent as their primary carer even after the age of 18 in order that the effective exercise of their free movement right is not undermined. That however is not this case and there is no suggestion that Aneqa is anything other than a regular almost 23-year-old young woman. In those circumstances, it seems to me that Ms Shaikh’s (and, I should add, the other family members’) Chen derivative rights of residence ceased on Aneqa’s 18th birthday (i.e. on 22 November 2020).
62. Mr Maqsood prayed in aid the fact that for the purpose of residence rights granted to family members of EU citizens under Directive 2004/38/EC, one category of family member is “direct descendants who are under the age of 21 or are dependants” (see Article 2(2)(c)). This is not however a case about family members within the meaning of Article 2 of the Directive. Ms Shaikh is not Aneqa’s direct descendant, and the person of whom she is a direct descendent – Ather – is not someone with any right of residence under the Directive. Ms Shaikh was required to rely on a Chen derivative right of residence precisely because she is not within the ambit of the Directive. There is no hint in any of the cases on Chen derivative rights that the definitions from the Directive should be imported into a different category of residence and I can see no proper basis for doing so in light of the clear indications in the cases discussed above that the Chen right of residence is (save potentially in the sort of exceptional circumstances I have described) derived only from an EU national who is a child.
Issue 4: Does the grant of leave to Muhammed mean that Ms Shaikh is legally required to be granted leave?
63. In para. 22 of the 2025 FTT decision, the FTT considered that the approach taken by the SSHD to Muhammed’s application – i.e. to grant it – supported the view that the Withdrawal Agreement required a grant to leave to be made to Ms Shaikh. The premise of this was that “the only lawful basis for the Respondent granting the brother’s application must have been that to refuse it would have been a breach of his rights under the Withdrawal Agreement”. In answer to the SSHD’s appeal to this Tribunal, Mr Maqsood essentially submitted that the FTT was correct in this regard and that it could be inferred that because Muhammed had been granted leave, so too must Ms Shaikh. Mr Maqsood also suggested that if there was no rational distinction between the two siblings’ cases, Ms Shaikh’s refusal could not stand.
64. As to this latter point, Mr Terrell was unable to explain to me why Muhammed’s application had been granted but Ms Shaikh’s had been refused when they appear to be in materially identical circumstances. This is unimpressive. Such apparently inconsistent decision-making is contrary to basic principles of good administration. Where inconsistency is irrational, this can, in principle, give rise to successful claims for judicial review (though these may be difficult in practice: see HA (Iraq) v Secretary of State for the Home Department [2020] EWCA Civ 1176, [2021] 1 WLR 1327 at [129]). That is however a different question to whether either of the statutory grounds of appeal available on an appeal to the FTT against a refusal of leave under the EU Settlement Scheme are made out, and save to the extent relevant to those grounds of appeal, one that this Tribunal is not empowered to address.
65. I turn then to the relevance of the grant of leave to Muhammed to the interpretation of the Withdrawal Agreement, and whether the FTT was correct in its inference that the grant to Muhammed showed that Ms Shaikh must also have been granted leave under it. In my judgment the grant of leave is not relevant and the FTT was wrong to draw the inference which it did from it. This is for the following reasons:
a. First, while subsequent practice in relation to a Treaty, such as the Withdrawal Agreement may be taken into account in interpreting a Treaty’s meaning (see Article 31(3)(b) VCLT), it must be such as to establish the agreement of the parties regarding its interpretation and in my judgment a single instance of the grant of leave pursuant to the Withdrawal Agreement is of itself in my judgment wholly insufficient to establish a consensus between the parties as to its interpretation.
b. Second, and in any event, the FTT’s premise, namely that “the only lawful basis” for the grant of leave to Muhammed is that he had a legal entitlement to it, is flawed. The SSHD has a virtually untrammelled discretion to grant leave to remain in the UK, even where leave would not be given under the immigration rules: R (Munir) v Secretary of State for the Home Department [2012] UKSC 32, [2012] 1 WLR 2192 at [44]. The grant of leave to Muhammed is accordingly equally consistent with the SSHD having made a mistake in his case. If that is what has happened, that leave has still been given on a lawful basis, but outside of the immigration rules. It accordingly does not follow from the grant of leave that Ms Shaikh (or indeed Muhammed) was required as a matter of law to be granted leave.
66. In the circumstances, I do not consider that the grant of leave to Mohammed supports Ms Shaikh’s case that the refusal of her application constituted a breach of the Withdrawal Agreement.
Conclusion
67. This judgment has canvassed a number of somewhat disparate issues. It may therefore be helpful for me to summarise my conclusions. They are as follows:
a. It is common ground that the 2025 FTT decision did not assess whether Ms Shaikh was residing in the UK in accordance with EU law on 31 December 2020.
b. For the reasons set out above, I consider that the SSHD was entitled to argue that it was an error for the FTT not to do so.
c. I also conclude that the SSHD is correct that this was an error. The Withdrawal Agreement required that assessment to be made.
d. Had the FTT assessed whether Ms Shaikh was residing in the UK in accordance with Union law on 31 December 2020, it would in my judgment have been bound to have concluded that she was not doing so. This was because her derivative right of residence ceased on Aneqa’s 18th birthday, which was before 31 December 2020.
e. The fact that Muhammed appears to be in an identical situation to Ms Shaikh yet was granted leave is regrettable, but this does not mean that Ms Shaikh was entitled to such leave under the Withdrawal Agreement.
68. It follows that:
a. I allow the SSHD’s appeal against the 2025 FTT decision;
b. I set aside the 2025 FTT decision; and
c. I re-make that decision by dismissing Ms Shaikh’s appeal.

Notice of Decision
The decision of the First-tier Tribunal promulgated on 14 March 2025 involved the making of an error of law and is set aside. I re-make the decision on the underlying appeal by dismissing it.

Paul Skinner

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

20 October 2025