Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-002554

First-tier Tribunal No: EA/02426/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

18th November 2025

Before

UPPER TRIBUNAL JUDGE KEBEDE
DEPUTY UPPER TRIBUNAL JUDGE O’RYAN

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

FAISAR MASOOD
(NO ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Mr A McVeety, Senior Home Office Presenting Officer
For the Respondent: Litigant in Person

Heard at Manchester Civil Justice Centre on 21 October 2025

DECISION AND REASONS
1. This is an appeal brought by the Secretary of State against a decision by First-tier Tribunal Judge Rothwell dated 26 March 2025. Judge Rothwell had been considering an appeal brought to the First-tier Tribunal by a Mr Faisal Masood, a national of Pakistan. For convenience, we shall refer to Mr Masood as the Appellant and the Secretary of State as the Respondent.
2. The Appellant had made an application under Regulations 8 and 12 of the Immigration (European Economic Area) Regulations 2016 (‘the 2016 Regulations’) for a travel permit to enter the United Kingdom as the extended family member of his brother, a Mr Muhammad Asif Afzal Nisa, an EU national resident in the United Kingdom, and on whom the Appellant claimed to be dependent. The application for a travel permit was made as long ago as 16 December 2020. The decision refusing that application was made on 16 March 2021. The Respondent’s decision disputed that which had been claimed by the Appellant, that he was financially dependent on his brother. The Appellant brought an appeal against that decision to the First-tier Tribunal and asked that it be determined on the papers. The Appellant provided evidence in support of his appeal which was then considered by the judge.
3. The judge determined the appeal on the papers, and gave her decision on 26 March 2025. The judge observed at paragraph 12 of the determination that the Respondent had not questioned the relationship between the Appellant and the Sponsor, and the judge accepted the Appellant was the Sponsor’s brother. Further, the judge held at paragraph 13: “I have applied the standard of the balance of probabilities when making my findings of fact and I do find that the appellant has been dependent on the sponsor since February 2019 for his essential needs and continues to be so”, and gave reasons at paragraphs 14-21 for that finding, taking into account the Appellant’s evidence as to his dependency on his brother.
4. The judge had directed herself in law at paragraph 11 of her determination in the following form, “It is for the appellant to establish his case on the balance of probabilities” and then quotes the following Regulation:
“Dependent
(a) having regard to their financial and social conditions, or health, the applicant cannot meet their essential living 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 the qualifying British citizen) or of their spouse or civil partner; and
(b) such support is being provided to the applicant by the relevant EEA citizen (or, as the case may be, by the qualifying British citizen) or by their spouse or civil partner; and
(c) there is no need to determine the reasons for that dependence or for the recourse to that support”.
Whilst the judge did not state the source for that quotation it seems to this Tribunal that it is derived from the definition of ‘dependent’ at two locations within Annex 1 of Appendix EU of the Immigration Rules. Further, at the end of her decision the judge purported to allow the appeal ‘under the EUSS’. It can therefore be seen that the judge may have directed herself incorrectly in law, by referring to provisions within Appendix EU, rather than the provisions within the 2016 Regulations.
5. The Respondent now appeals against that decision in grounds of appeal dated 4 April 2025 making that very point: that the judge had an appeal before her under the 2016 Regulations, but had purported to allow the appeal under Appendix EU. Permission was granted by Judge of the First-tier Tribunal Horton on 27 May 2025, although that judge queried whether any error that the judge had made was material to the outcome.
6. The Tribunal has today heard from Mr McVeety representing the Secretary of State for the Home Department. Mr McVeety accepts that the Secretary of State had not challenged the finding of fact that was made by the judge, that the Appellant was financially dependent on his EU national brother, and Mr McVeety does not seek to challenge that finding today.
7. Mr McVeety also accepted that the definition of Dependent as set out above contained within Appendix EU, is not materially different from the test of dependency which applied within the 2016 Regulations, and this Tribunal has had regard to the definition of dependency as set out at paragraphs 19 and 22 of the case of Reyes v Secretary of State for the Home Department(EEA Regs: dependency) [2013] UKUT 314:
“19. From the above, we glean four key things. First, the test of dependency is a purely factual test. Second, the Court envisages that questions of dependency must not be reduced to a bare calculation of financial dependency but should be construed broadly to involve a holistic examination of a number of factors, including financial, physical and social conditions, so as to establish whether there is dependence that is genuine. The essential focus has to be on the nature of the relationship concerned and on whether it is one characterised by a situation of dependence based on an examination of all the factual circumstances, bearing in mind the underlying objective of maintaining the unity of the family. It seems to us that the need for a wide-ranging fact-specific approach is indeed enjoined by the Court of Appeal in SM (India): see in particular Sullivan LJ’s observations at [27]-[28]. Third, it is clear from the wording of both Article 2.2 and regulation 7(1) that the test is one of present, not past dependency. Both provisions employ the present tense (Article 2.2(b) and (c) refer to family members who ‘are dependants’ or who are ‘dependent’; regulation 7(c) refers to ‘dependent direct relatives…’). Fourth (and this may have relevance to what is understood by present dependency), interpretation of the meaning of the term must be such as not to deprive that provision of its effectiveness.
22. ... As the case law makes clear, in the context of EU law on family members the test of dependency is not whether a person is wholly or mainly dependent, but whether he or she is reliant on others for essential living needs”.
8. Mr McVeety therefore accepts that there was an error made by the First-tier Judge, but that this appeal could have been allowed by the judge under the 2016 Regulations. We say as an aside that the judge was not assisted by the Respondent when determining the appeal, as the Respondent’s bundle had misled the judge as to the regulatory framework which applied: stating on the face of the bundle that the application had been made under the EU Settlement Scheme, which was itself incorrect and misleading.
9. We have not found it necessary to call upon the Appellant to make submissions in this matter.
Discussion
10. This Tribunal finds that the judge did err in law in the way in which she determined the appeal: the judge directed herself in law by reference to immigration rules which were not applicable, and purported to allow the appeal under Appendix EU, whereas the application and the appeal were under the 2016 Regulations.
11. However, the judge’s self direction as to the definition of dependency was not a material error of law, it being accepted by the Respondent and this Tribunal that there is no material difference, in the circumstances of this particular appeal, between the definition of dependency under Appendix EU, and the 2016 Regulations. Further, there is no challenge to the judge’s primary finding of fact, that the Appellant was dependent on his brother.
12. However, the purported allowing of the appeal under Appendix EU does ultimately represent a material error of law. Appendix EU simply did not apply and the appeal could not have been allowed by reference to those provisions. This may have led to some confusion for the Respondent as to how to implement the judge’s decision or what form of leave to remain might be granted to him.
13. However, we are satisfied for the reasons set out above that the appeal could and should have been allowed by reference to Regulations 8 and 12 of the 2016 Rules. This Tribunal is in a position to re-determine the appeal, without the need for further evidence or submissions, taking into account the findings of fact made by the First tier Tribunal, which are undisturbed.
14. We determine that this appeal should be determined in the following way.
Decision
15. The Secretary of State’s appeal to the Upper Tribunal succeeds, to the extent that this Tribunal accepts that there was a material error of law in the judge’s decision.
16. The judge’s decision is set aside.
17. The Tribunal re-makes the decision in the appeal, by allowing Mr Masood’s appeal, by reference to Regulations 8 and 12 Immigration (European Economic Area) Regulations 2016.

Judge O’Ryan

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

13 November 2025