Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-003363

First-tier Tribunal No: EA/01026/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

17th November 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE MOXON

Between

ASAD MAHMOOD BUTT
(ANONYMITY ORDER NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: In person, unrepresented
For the Respondent: Ms Nolan, Senior Home Office Presenting Officer

Heard at Field House on 10 November 2025

DECISION AND REASONS

Introduction

1. The Appellant appeals, with permission, the decision of a Judge of the First-tier Tribunal (“the Judge”) dated 17th March 2025 dismissing his appeal against the refusal of limited leave to remain under the European Union Settlement Scheme. He had claimed retained rights of residence on account of having been previously married to a Dutch national.

Background

2. The Appellant applied for limited leave to remain pursuant to the EU Settlement Scheme on 28th June 2021 on the basis of retained rights as the former spouse of an EEA national. That application was refused by the Respondent on 13th April 2024.

3. The appeal against that decision was heard by the Judge on 20th January 2025, who dismissed the appeal in a determination dated 17th March 2025.

4. The factual matrix, as submitted by the Appellant and accepted by the Judge, was that the Appellant had married a Dutch national in Pakistan in 2006; that he joined her in the United Kingdom in 2009 and was issued a residence card based on the relationship; that they stopped living together when she returned to the Netherlands in December 2012 / January 2013; that she initiated divorce proceedings at some point thereafter; and that the divorce was finalised in November 2015.

5. It is evident from the reading of that determination, together with the documents that were before him at the appeal, that the Judge was not given the necessary assistance by the parties in identifying the precise rules within Appendix EU to the Immigration Rules that were in dispute, or why such rules were met / not met.

6. Nevertheless, the Judge summarised the Rules within his determination and concluded that the Appellant could not satisfy the requirements for the status sought as it had not been shown that the former spouse was a relevant EEA citizen at the time that the divorce was initiated.

7. Permission to appeal was refused by another Judge of the First-tier Tribunal on 25th June 2025.

8. Renewed grounds of appeal were submitted to the Upper Tribunal.

9. Four grounds were pursued.

10. Ground 1 argues that the Judge erred in his interpretation of the definition of “family member who has retained the right of residence”:

“2. The First-tier Tribunal Judge made a material error of law by failing to apply the deeming provision found in paragraph (d)(i) of the definition of “family member who has retained the right of residence” in Appendix EU. This provision makes clear that an EEA citizen who has started divorce proceedings is to be treated as a “relevant EEA citizen” until the divorce is finalised, even if they stop residing in the United Kingdom after proceedings have begun.

3. At paragraph 5 of the determination, the Judge concluded that the Appellant could not meet the requirements for a retained right of residence because his ex-wife had left the UK before the divorce was finalised and therefore was no longer a “relevant EEA citizen.” This conclusion demonstrates a failure to consider or apply the deeming clause under paragraph (d)(i), which directly addresses this situation. The rule expressly allows for continued recognition of “relevant EEA citizen” status up to the date of the divorce, regardless of whether the EEA sponsor remains physically present in the UK during that time.”

11. Ground 2 argues that the Judge erred in his interpretation of the continuous qualifying period test:

“8. The First-tier Tribunal Judge materially erred in law by misapplying the residence requirement set out in paragraph (d)(iii)(aa) of the definition of “family member who has retained the right of residence” in Appendix EU. In paragraphs 32 and 33 of the determination, the Judge appears to interpret this provision as requiring the EEA national spouse to have remained continuously resident in the United Kingdom until the divorce was finalised. That approach is legally flawed and is not supported by the wording of the rule.

9. Paragraph (d)(iii)(aa) imposes a clear and limited test: it requires that, prior to the initiation of divorce proceedings, the marriage must have lasted at least three years and the parties must have resided together in the UK for at least one year. These requirements are designed to assess the historical durability and UK nexus of the relationship before the legal process of divorce begins. The rule does not include, either explicitly or implicitly, any requirement that the EEA national remain in the UK up to the date of decree absolute.

10. The evidence before the Tribunal demonstrated that the Appellant and his Dutch national ex-
spouse were still married from March 2009 until November 2015 and had lived together continuously in the UK from January 2009 until at least January 2013. Divorce proceedings were initiated sometime after the sponsor’s departure and concluded in 2015. Accordingly, both limbs of the test under paragraph (d)(iii)(aa) were clearly met prior to the initiation of proceedings. This should have been sufficient to satisfy the retained rights criteria under this limb of the definition.”

12. Ground 3 argues that the Judge erred in his assessment of the applicability of Baigazieva [2018] EWCA Civ 1088:

“16. In the present appeal, the Appellant and his former spouse, who held Dutch nationality, were married from March 2009 until the divorce was finalised in November 2015. They resided together in the UK from January 2009 until January 2013. The sponsor reportedly left the UK in early 2013, but divorce proceedings were initiated sometime thereafter and concluded in 2015. On these facts, and following Baigazieva, the departure of the EEA sponsor from the UK prior to the divorce does not preclude the Appellant from retaining a right of residence under Appendix EU, provided that the sponsor remained a qualified person when proceedings were commenced. This is precisely the scenario that Baigazieva addresses and resolves in favour of the Applicant.

17. The Respondent’s refusal of the Appellant’s application and the First-tier Tribunal’s dismissal of the appeal both rely, explicitly or implicitly, on the position that the EEA national ceased to be a “relevant EEA citizen” once she left the UK before the divorce. However, Baigazieva makes clear that such a conclusion is legally unsound. Moreover, Appendix EU contains a deeming provision (paragraph (d)(i)) that treats the EEA national as continuing to be a relevant EEA citizen until the divorce is finalised. This mirrors the logic and effect of Baigazieva, and reinforces its relevance to Appendix EU cases.”

13. Ground 4 argues that the Judge acted in a procedurally unfair manner by excluding late evidence:

“20. In paragraph 9 of the initial FTT determination, the FTJ declined to admit additional residence evidence due to lateness, despite acknowledging that it was relevant. This decision denied the Appellant the opportunity to support his case on a central issue: proving continuous UK residence during the relevant period. The FTJ acknowledged prior findings on residence from an earlier refusal in 2015 but did not allow updated or corroborating documents to be considered.

21. The strict exclusion of such evidence — without any balancing of prejudice — was procedurally unfair and led to an incomplete assessment of the facts. This unfairness undermines the overall safety of the decision.”

14. Permission to appeal was granted by a Judge of the Upper Tribunal on 4th September 2025:

“1. The relevant definitions in Appendix EU are complex and they Judge does not appear to have been assisted during the hearing. Nevertheless, it is arguable that the Judge erred in his interpretation of Appendix EU of the Immigration Rules and whether the appellant met the requirements for being granted limited leave to remain in accordance with that Appendix as a “family member who has retained the right of residence by virtue of a relationship with a relevant EEA citizen.” The applicant is granted permission to appeal on the first ground.

2. The materiality of grounds two and three is doubtful, however I do not restrict the grant of permission.

3. Given the complexity of the definitions the Tribunal will be greatly assisted by written arguments in accordance with Rules 24 and 25 of the Tribunal Procedure (Upper Tribunal) Rules 2008.”

15. The Upper Tribunal Judge was silent as to ground 4 but, given that permission to appeal was not restricted, I have treated all four grounds as subject to the appeal before me.

The hearing

16. The documents were contained within a 176-page electronic bundle.

17. The grant of permission to appeal invited Rule 24 and 25 submissions. The parties were subsequently directed, on 11th September 2025, to provide written arguments: the Respondent to provide a written response to the notice of appeal identifying the relevant definitions of Appendix EU and, not less than 7 days before the hearing, a written response by the Appellant to identify any difference in the interpretation of the relevant definitions.

18. The Respondent adhered to the directions and, in relation to Ground 1, submitted:

“8. The respondent submits that the reading of Annex 1 of Appendix EU is very clear with regards to the following:
a. A relevant EEA citizen is defined as set out in Annex 1 and must be resident in the UK for a continuous qualifying period before the specified date
b. A continuous qualifying period may be broken in cases of absences exceeding six months in any 12-month period (see (b) (i))
c. At the time of the initiation of divorce proceedings the appellant must be a family member of a relevant EEA national (see (d) (i) above), subject to the definition of relevant EEA citizen
d. Even if an EEA national ceased to be a relevant EEA citizen, if the divorce proceedings were commenced before that the EEA citizen will be considered as relevant EEA national (see (d) (i) above), and
e. An Appellant (non-EEA national) must be resident in the UK at time of termination of marriage or partnership (see (d) (ii) above), and
f. Prior to the initiation of termination proceedings, the marriage or partnership must have lasted at least three years and the parties must have been resident for continuous qualifying period for at least one year (see (d) (iii)(aa) above).

9. Applying the provision as set out above to the appellant’s case, the respondent submits that [the Judge] was correct in the determination when finding the appellant’s wife was not a relevant EEA citizen.

10. The sole question as such in this appeal centres on whether the appellant’s wife was a relevant EEA citizen at the time of the commencement of the divorce proceedings, subject to the definitions set out in Annex 1 of Appendix EU. If the appellant’s wife was a relevant EEA citizen then as held by [the Judge] at [33] the appellant would satisfy the requirements under (d)(iii)(aa).”

19. No response was received by the Appellant.

20. Whilst the Appellant’s representatives uploaded a composite bundle in advance of the hearing before me, the Appellant attended the hearing unrepresented and accompanied by a friend. He told me that he was no longer represented due to lack of funds and that he wished to proceed with the appeal without delay. I noted that he had the benefit of an interpreter before the First-tier Tribunal but he demonstrated to me that he spoke sufficient English and I ensured that he understood as the hearing progressed. In all of the circumstances, I was satisfied that it was fair to proceed.

21. I summarised the issues in the appeal and Ms Nolan confirmed that the Home Office case had been identified in my summary and she had no submissions to make over and above those in the Rule 24 response. I gave the Appellant the opportunity to leave the hearing room with his friend, a fluent English speaker, to obtain any guidance. The Appellant them made submissions in adequate English. It was evident that he had sufficient English to undertake this task. I assured after his submissions that he had nothing else to add and gave him the opportunity to check this with his friend.

22. During his submissions, the Appellant confirmed that the evidence he sought to adduce on the day of the First-tier Tribunal hearing related to his own presence in the United Kingdom. He does not know when his former spouse initiated the divorce but it was after she had left the United Kingdom in December 2012 / January 2013. Since that time, she has been living in the Netherlands and has not returned to the United Kingdom.

Discussion and analysis

23. Throughout my consideration of the appeal, I had regard to the guidance provided by the Court of Appeal in Volpi v Volpi [2022] EWCA Civ 462 and Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201, in relation to the powers of the Upper Tribunal and how they should be exercised.

Ground 4

24. I considered this ground of appeal first. It is argued that the Judge acted unfairly in excluding relevant evidence. This matter was addressed by the Judge at paragraph 9 of his determination:

“At the outset of the proceedings there was a submission to admit numerous documents which went to whether or not the Appellant had been in the United Kingdom for the necessary period. It was conceded there was no good reason for them being submitted late, however on looking at the previous determination referred to by the Respondent in the refusal, there were clear findings as to how long the Appellant had been in the United Kingdom, and Mr. Claire did not seek to persist with his application to admit the late documents. As a result I declined to admit them.”

25. The ground of appeal is misleading as the Judge expressly considered the evidence not to be relevant. As outlined at paragraph 4, above, the Judge proceeded to consider of the appeal upon the factual matrix that the Appellant had been resident in the United Kingdom since 2009. As such, the documentation showing such residence was not of assistance and any refusal to admit it could not amount to an error of law.

Ground 1

26. Ground 1 argues that the Judge misapplied the test for limited leave to remain upon retained rights, particularly paragraph d(i) of the relevant rule.

27. It is regrettable that neither party, within written arguments or during the hearing before the First-tier Tribunal Judge, adequately outlined the Rule to be satisfied. It was left to the Judge to do so in his determination, as I do below.

28. The Appellant’s application was for limited leave to remain pursuant to paragraph 14 of Appendix EU to the Immigration Rules.

29. The Appellant claims to satisfy Paragraph 14 as a family member who has retained the right of residence by virtue of a relationship with a relevant EEA citizen (14.1(a)(iii)).

30. The Appellant was required to satisfy the definition of ‘family member who has retained the rights of residence’ as detailed within Annex 1 of Appendix EU. The Appellant asserts satisfaction of paragraph (d) as a former partner of a relevant EEA citizen:

“(d) the applicant (“A”) is an EEA citizen (in accordance with sub-paragraph (a) of that entry in this table) or non-EEA citizen who:

(i) ceased to be, as the case may be, a family member of a relevant EEA citizen (or of a qualifying British citizen), or a joining family member of a relevant sponsor, on the termination of the marriage or civil partnership of that relevant EEA citizen (or, as the case may be, of that qualifying British citizen or of that relevant sponsor); for the purposes of this provision, where, after the initiation of the proceedings for that termination, that relevant EEA citizen ceased to be a relevant EEA citizen (or, as the case may be, that qualifying British citizen ceased to be a qualifying British citizen, or that relevant sponsor ceased to be a relevant sponsor), they will be deemed to have remained a relevant EEA citizen (or, as the case may be, a qualifying British citizen or a relevant sponsor) until that termination; and

(ii) was resident in the UK at the date of the termination of the marriage or civil partnership; and

(iii) (where A is a non-EEA citizen) one of the following applies:

(aa) prior to the initiation of the proceedings for the termination of the marriage or the civil partnership, the marriage or civil partnership had lasted for at least three years and the parties to the marriage or civil partnership had been resident for a continuous qualifying period in the UK of at least one year during its duration…”

31. It should be highlighted, at this point, that to satisfy the definition, d(i), (ii) and (iii) must all be met. As such, failure to satisfy the criteria within d(i) renders satisfaction of d(ii) and / or (iii) immaterial.

32. Paragraph d(i) specifies, as correctly identified by the Appellant, that the applicant will cease to be a family member of a relevant EEA citizen upon termination of the marriage but that the status of the family member, ie whether they are a relevant EEA citizen, must be assessed as at the time that the divorce was initiated, not completed.

33. In fact, the status of the Appellant’s former spouse at the time that the divorce was initiated is the central issue in the Appellant’s particular case.

34. The Appellant could only satisfy the Rules if he could show, on the balance of probabilities, that his former spouse was a relevant EEA citizen at the time that the divorce was initiated.

35. In this regard he falls into some disadvantage as he says that he does not know when the divorce was initiated. He only knows that it was initiated after his former spouse had left the United Kingdom in December 2012 / January 2013 and was completed in November 2015.

36. In determining whether the former spouse remains a relevant EEA citizen and, if not, when she ceased to be a relevant EEA citizen, it is necessary to consider the definition of ‘relevant EEA citizen (where, in respect of the application under consideration, the date of application by the relevant EEA citizen or their family member is before 1 July 2021)’

37. The Appellant argues that his former spouse was a relevant EEA citizen by satisfaction of paragraph (a) of the definition:

“an EEA citizen (in accordance with sub-paragraph (a) of that entry in this table) resident in the UK and Islands for a continuous qualifying period which began before the specified date”

38. The definition of ‘continuous qualifying period’ details that the qualifying period is broken by absence from the United Kingdom and Islands exceeding a total of six months in any 12-month period, save for in certain circumstances where the person may be absent for a period not exceeding 12 months (paragraph b); and which continues at the date of the application.

39. Given that the Appellant accepts that his former spouse left the United Kingdom in December 2012 / January 2013 and has lived in the Netherlands thereafter, it follows that she ceased to be a relevant EEA citizen after 6 months absence (or, if for one of the reasons outlined in the rules, 12 months thereafter) and so she ceased to be a qualifying EEA citizen by 1st February 2014 at the very latest.

40. The Appellant therefore had to show, on the balance of probabilities, that his former spouse initiated the divorce proceedings at some point before, at the very latest, 1st February 2014. He was unable to satisfy that burden as he does not know when the divorce proceedings were initiated. In any event, it appears to be inherently unlikely that the proceedings were initiated prior to that date given that they were not finalised until November 2015, and therefore some 21 months later.

41. The Appellant cannot therefore satisfy the Rules.

42. The Judge identified that the date of initiation of the divorce was not known but that the former spouse had been absent from the United Kingdom since December 2012 / January 2013 and the divorce was finalised in November 2015. He correctly summarised the law, as I have outlined above, and he applied that law to the facts of the case. Upon doing so he concluded, at paragraph 33, that the former spouse was not a relevant EEA citizen at the relevant period:

“Taking these items together it is clear that the Appellant’s ex-wife has not been in the United Kingdom since 2013, and notwithstanding that the marriage may have lasted for three years, with one year definitely spent in the United Kingdom, I find that the Appellant’s ex-spouse is not a relevant E.E.A. citizen or national, for the purposes of the E.U.S.S. because of that absence from 2013 until the specified date.”

43. He went on to conclude:

“40. This is in my view a straight matter of law, it does not depend on any of the facts as they have been outlined, given that there is no dispute that the Appellant’s ex-wife left either in late December 2012 or January 2013, and has not returned to the United Kingdom since.

41. Thus for the reasons given I find that the Appellant’s ex-wife is not a relevant E.U. national for the purposes of showing the Appellant has a retained right of residence because of the supervening event of her absence from the United Kingdom since 2013.”

44. The Judge’s analysis of the law was accurate and his application of the facts to the law unimpeded by error.

45. Ground 1 of the grounds of appeal demonstrates a misunderstanding by the Appellant of the decision made by the Judge. It argues that the Judge had considered the former spouse’s status at the time that the divorce was terminated. That is incorrect. The Judge had considered her status at the time that the divorce was initiated and he properly concluded that it could not be shown that she was a relevant EEA citizen at that point in time.

46. Ground 1 of the grounds of appeal must therefore be dismissed. The Judge did not misapply the Rules. His decision was not vitiated by an error of law, either material or otherwise.

Ground 2

47. Ground 2 argues a misinterpretation by the Judge of paragraph d(iii).

48. If Ground 2 identified an error of law, it could not be material given that the Judge had found that paragraph d(i) was not satisfied and given that all three of d(i), (ii) and (iii) must be satisfied to succeed.

49. In any event, the Judge did not misinterpret the law. His determination at paragraph 33 accepts that d(iii) was met as there was no dispute that the Appellant and his former spouse had been married for over three years, during which they lived together for over 12 months in the United Kingdom. The point he was making in the impugned paragraph was not that d(iii) was not met, but that d(i) was not met as the Appellant had not shown that his former spouse was a relevant EEA citizen at the time the divorce was initiated. For the reasons outlined above, that decision was not vitiated by error.

Ground 3

50. Ground 3 relates to the Judge’s consideration that Baigazieva [2018] EWCA Civ 1088, a case concerning the EEA Regulations, was not directly applicable when considering applications pursuant to Appendix EU.

51. In that case, the Court of Appeal held that a former spouse's status as a "qualified person" only needed to be proven at the point that divorce proceedings were commenced.

52. I need not consider whether the caselaw applies to Appendix EU as, in any event, the Judge focused on the status of the former spouse at the time of commencement of the divovrce proceedings, not when the divorce was terminated, and found that she was not a relevant EEA citizen at that earlier point.

53. As such, Ground 4 discloses no material error of law.

Conclusion

54. The Judge’s determination is not vitiated by any error of law, either material or otherwise.

Notice of Decision

The decision of the First-tier Tribunal did not involve the making of an error on a point of law. The decision shall stand.

DUTJ Moxon
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

12th November 2025