Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-003061

First-tier Tribunal No: EA/01635/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 5th of November 2025

Before

UPPER TRIBUNAL JUDGE BULPITT

Between

MS COMFORT OKUNBOR
(NO ANONYMITY ORDER MADE)
Appellant
and

THE ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: Ms K Anifowoshe, Counsel instructed via Direct Access
For the Respondent: Ms H Gilmour, Senior Home Office Presenting Officer

Heard at Field House on 22 October 2025

DECISION AND REASONS
1. The appellant is a Nigerian national living in Italy. On 20 May 2024 she applied, in accordance with the European Union Settlement Scheme (EUSS), for a family permit to enter and settle in the United Kingdom as the family member of a relevant EEA citizen. That relevant EEA citizen is her son-in-law (the sponsor) who, along with the appellant’s daughter, has already been granted limited leave to remain in the United Kingdom under the EUSS.
2. The respondent refused the appellant’s application on 8 July 2024 because she found that the appellant did not meet the definition of a “family member of a relevant EEA citizen” within the EUSS. Whilst the respondent recognised that the parent of a relevant EEA citizen or their spouse will meet that definition if they are dependent on the EEA citizen or their spouse, the respondent concluded that the appellant was not dependent on her daughter or her son-in-law.
3. The appellant appealed to the First-tier Tribunal against the respondent's decision. Although the appellant indicated on her notice of appeal that she wanted her appeal to be determined on the papers (i.e. without a hearing), a hearing was nonetheless scheduled for 3 March 2025 before First-tier Tribunal Judge Beg (the Judge). It is not clear why a hearing was scheduled, neither is it clear what notice (if any) of the scheduled hearing was provided to the appellant, the sponsor or the appellant’s daughter. No-one attended the hearing on behalf of the appellant but a Home Office Presenting Officer (HOPO) attended on behalf of the respondent.
4. The Judge records (at [5] of her decision) that attempts were made to contact the sponsor on the day of the hearing but there was no response to those attempts. The Judge then records that she was satisfied that notice of the hearing had been provided and on that basis proceeded with the hearing. The Judge records (at [5]) that the HOPO made submissions at that hearing in support of the respondent’s decision.
5. The Judge then records (at [6]) that after the hearing the appellant’s daughter emailed the Tribunal “indicating that the appeal is to be determination upon the papers (sic)” The Judge then adds that:
“As the appellant requested a paper hearing and paid a fee for a paper hearing, the matter is determined on the documents submitted”
The Judge went on to dismiss the appellant’s appeal finding at [24] “that there is not in existence a situation of real dependency”
6. The appellant was granted permission to appeal to this tribunal against the Judge’s decision on the ground that it was arguable that the process adopted by the Judge had been procedurally improper. The Judge granting permission noted: “There is in any event a tension between [5] and [6] of the judge’s decision. The first of those paragraphs shows that there was a hearing at which she heard submissions from the Presenting Officer. As presently advised, I cannot see how it was then open to her to decide the appeal on the papers, as suggested at [6].”
7. At today’s hearing Ms Gilmour conceded on behalf of the respondent that the procedure adopted by the Judge had been improper and unfair and as a result that the Judge’s decision would have to be set aside. I agree with that concession. For whatever reason, despite the indication on the initial notice of appeal about the appeal being considered on the papers, a hearing did take place at which submissions were made by the respondent. The appellant’s daughter’s response when contacted on the date of the hearing, was consistent with her being unaware of a hearing being listed and expecting the appeal to be determined on the basis of the submitted documentation alone and without oral submissions being made and considered. Whilst the appellant consented to the appeal being decided on the papers, she did not consent to the appeal being decided after submissions were made by only one party. Having conducted a hearing and heard submissions from the respondent it was simply not open to the Judge to purport to consider the appeal as if the hearing had never occurred and the submissions had never been made.
8. I am satisfied therefore that there was a procedural impropriety in the Judge’s consideration of this appeal such that the appellant was deprived of a fair consideration of her appeal. Accordingly I set aside the Judge’s decision.
Remaking
9. After I announced I would be setting aside the Judge’s decision and intended to remake the decision today, the appellant served further evidence and made an application in accordance with rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008 to rely on that further evidence. The evidence included bank statements showing transfers of money from the appellant’s daughter to the appellant and regular flights taken by the appellant’s daughter to visit the appellant in Italy.
10. Having considered this new evidence in conjunction with the evidence that had been served prior to the hearing in the First-tier Tribunal and the material submitted with the appellant’s application, Ms Gilmour formed the view that the evidence adduced establishes that the appellant is dependent on her daughter and the sponsor. Ms Gilmour therefore informed me that on behalf of the respondent she was withdrawing the decision to refuse the appellant’s application, with a view to the appellant being granted the Family Permit she seeks. Ms Anifowoshe confirmed that in these circumstances she was not arguing that there is a good reason to continue to hear the appeal. The parties accordingly agreed that the appeal should be treated as withdrawn.
Notice of Decision
The decision of First-tier Tribunal Judge Beg contained an error of law and is set aside.
The appellant’s appeal against the decision to refuse her application for a Family Permit is withdrawn.

Luke Bulpitt

Judge of the Upper Tribunal
Immigration and Asylum Chamber

22 October 2025