Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-003425

First-tier Tribunal No: EA/01527/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 29th December 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE D. CLARKE

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Maria Dorosenco
Respondent

Representation:

For the Appellant: Ms Ahmed, Senior Presenting Officer
For the Respondent: Litigant in Person.

Heard at Field House on 24 November 2025

DECISION AND REASONS

INTRODUCTION

1. For ease of reference and continuity, whilst the SSHD is the Appellant in these proceedings at the Upper Tribunal, I shall continue to refer to the parties as they appeared before the First-tier Tribunal. That is, the SSHD as the Respondent and Ms Dorosenco as the Appellant.

2. The SSHD appeals against the Decision of First-Tier Tribunal Judge Browne, promulgated on 8 May 2025 (“the Decision”), allowing the Appellant’s appeal against the SSHD’s decision dated 8 July 2024 (“RFRL”), refusing the Appellant’s application under the EU Settlement Scheme as a Joining Family Member of a Relevant Sponsor, dated 3 March 2024.

BACKGROUND

RFRL dated 8 July 2024

3. In the RFRL, the SSHD considered the Appellant’s application dated 3 March 2024 under Appendix EU as a “joining family member of a relevant sponsor”. In this regard, the SSHD noted that the Appellant had entered the UK on 8 December 2023, after the specified date of 31 December 2020, and that her relevant sponsor, Elena Pirogan, was the Appellant’s sister, as confirmed in the accompanying family registration document.

4. The SSHD considered the application under both the settled status route (EU11 and EU11A), and the pre-settled (EU14 and EU14A) routes of Appendix EU of the immigration rules.

5. In refusing the application, the SSHD found first, that the Appellant did not come within the required proximity of relationship to her Relevant Sponsor, as required under Annex 1 of Appendix EU:

“In line with the Citizens’ Rights Agreements, the definition of ‘joining family member of a relevant sponsor’ in Annex 1 to Appendix EU requires that, in light of the required evidence of family relationship which has been provided, a person applying as a joining family of a relevant sponsor is in one of the following categories:

• spouse
• civil partner
• specified spouse or civil partner of a Swiss citizen durable partner (unmarried partnership akin to marriage or civil partnership)
• child, grandchild, or great-grandchild (including of the spouse or civil partner)
• dependent parent, grandparent, or great-grandparent (including of the spouse or civil partner)

You have provided family registry document which states that you are the sibling of the relevant sponsor. You are not therefore a family member in one of the categories above and so you do not meet the definition of a ‘joining family member of a relevant sponsor’ in Annex 1 to Appendix EU to the Immigration Rules.”

6. The SSHD then went on to consider in any event whether the Sponsor met the definition of a “Relevant Sponsor” under Annex 1 of Appendix EU, but found that because the Relevant Sponsor had herself been granted pre-settled status under rule EU3A as a joining family member (see Sponsor’s grant letter at [29] of the FTT bundle), she was prohibited from acting as the Relevant Sponsor for the purposes of the application being considered:

“Furthermore, your application as the joining family member of a relevant sponsor was made on or after the 1 July 2021. Where the application date is on or after the 1 July 2021, the definition of ‘relevant sponsor’ requires that the relevant sponsor is an EEA citizen who, having been resident in the UK and Islands for a continuous qualifying period which began before the specified date, has been granted indefinite leave to enter or remain under paragraph EU2 of Appendix EU (or under its equivalent in the Islands), which has not lapsed or been cancelled, revoked or invalidated, or has limited leave to enter or remain under paragraph EU3 of Appendix EU (or under its equivalent in the Islands), which has not lapsed or been cancelled, curtailed or invalidated.

Although your relevant sponsor has been granted status under the EU Settlement scheme, they have been granted as a Joining Family member and therefore cannot act as a relevant sponsor for the purpose of this application.

You have not provided any alternative sponsor’s details.”

7. Finally, notwithstanding that the Appellant is the sister of the Relevant Sponsor, the SSHD in any event considered whether the Appellant was the dependent “Child over 21” of the Relevant Sponsor, as originally claimed in the application dated 3 March 2024. In this regard the SSHD found that no evidence had been submitted to demonstrate dependence.

Decision of First-tier Tribunal Judge Browne, dated 8 May 2025

8. The Appellant appealed the RFRL to the First-tier Tribunal and requested that the appeal be heard on the papers. The appeal then came before FTIJ Browne on 8 May 2025.

9. To put the grounds of appeal to the Upper Tribunal in context, I find it relevant to set out in some detail the basis upon which FTIJ Browne allowed this appeal under the headings referred to in the FTT Decision:

Background

At [3] – [7] it appears that Judge Browne was alive to the fact that the RFRL dated 8 July 2024 was the decision under appeal. However, the FTIJ also refers to applications and decisions in the papers which the Appellant before me confirmed do not exist. Equally, neither myself nor the parties were able to find these references in the papers.

“She applied for pre-settled status on 03/03/2024, her application was refused on 06/04/2024. She also refers to an application 03/05/2024, refused on 08/07/2024 in the appeal dated 21/07/2024.

[……] The application on 08/12/2023 refers to the sponsor as her parent or guardian [….]”

The basis of the Appeal

At [9] – [10] the FTIJ noted that the Appellant applied on the basis that she suffers from MS, that her condition is deteriorating, that she needs constant care and support, and that her sister and brother-in-law are her only family members who can look after her.

Appellant’s Appeal Rights

At [11] The FTIJ again refers to the Appellant making alternative applications and finds that the RFRL under appeal does not refer to any subsequent application.

Tribunal Analysis of Refusal Reasons

At [12] – [14] the FTIJ sets out the SSHD’s reasoning in the RFRL dated 8 July 2024.

Analysis of the Appellant’s Evidence

At [15] – [17] the FTIJ notes the existence of a Republic of Moldova Mayoralty letter which states that “Pirogan Elena, has under maintenance and education her sister – Dorosenco Maria, born in 1997, who was left without parental care from the age of 15, when her parents went abroad”. The FTIJ accepts this as cogent evidence of family relationship.

At [18] the FTIJ again refers to alternative applications, invokes immigration rule EU10(2) of Appendix EU and finds, “I apply the respondent’s guidance […….] Where or if there is more than one application, the latest application must be treated as an application to vary the earlier application(s) and only the latest application will be considered.”

At [19] the FTIJ then considers a “relevant document” and finds that, “if the applicant does not have a relevant document, they need to show evidence of their relationship. Accepted forms of evidence include the following: full birth certificate, a court order, such as a special guardianship order, other documents which satisfy the caseworker that the applicant is the direct descendant.”

At [20] – [21] The FTIJ notes the requirement of dependency on a “family member”; “If a child, grandchild or great-grandchild aged 21 or over, and not previously granted pre-settled status under the scheme as a child aged under 21”.

At [22] The FTIJ then considers part of the “Dependent Relative” definition under Annex 1 of Appendix EU in the following terms,

“Under sub-paragraph (a)(ii), a ‘person who is subject to a non-adoptive legal guardianship order’ (as defined in Annex 1 to Appendix EU) in favour (solely or jointly with another party) of their sponsoring person. The appellant’s situation has been set out in a foreign Mayoralty document, but the respondent has not referred to the document.”

At [23] the FTIJ finds that the Appellant’s documentation adds weight to the Appellant’s claimed dependency upon her sponsor.

At [24] the FTIJ finds that the Mayoralty document refers to a “situation of guardianship arising at the age of 15 and continuing” and finds that the relationship of dependency arose before the specified date and continues.

A Person who is subject to a non-adoptive legal guardianship order

At [25] the FTIJ sets out the definition of a non-adoptive legal guardian under Annex 1 of Appendix EU.

At [26] the FTIJ says of the requirement to hold a relevant document:

“The applicant may rely on the relevant document issued to the applicant on the basis that they are the dependent relative of their sponsoring person as evidence that these requirements have been met. Where the applicant does not hold a permanent residence document, they will also need to provide evidence which satisfies the respondent that the relationship continues to subsist (or did so for the period of residence relied upon) – the circumstances must be considered on a case-by-case basis. Valid’ under the Rules means that the document is genuine and has not expired or been cancelled or invalidated. The guidance above was updated 15/04/2025.”

Dependant Relative

At [27] the FTIJ sets out the definition of a “Dependant Relative” under Annex 1 of Appendix EU.

The Tribunal’s relevant findings from the Appellant’s documentary evidence

At [28] the FTIJ finds that the Relevant Sponsor obtained pre-settled status under EU3A as a joining family member.

At [29] the FTIJ finds that the Appellant entered the UK on 8 March 2023 and accepts “her evidence that she has acted as a close family member that has been akin to a parent in respect of the appellant.”

At [30] the FTIJ accepts that the Mayoralty document is reliable.

At [31] the FTIJ finds that the Sponsor’s husband could act as the Appellant’s necessary sponsor because he obtained his status under EU3 on 6 January 2021.

At [32 - 33] the FTIJ finds that the Appellant does not have any alternative family members who can care for her.

At [34] the FTIJ finds that “according to her medical evidence she has a diagnosis of multiple sclerosis (MS) with as stated is secondary monoplenai of a lower limb diplopia, gastritis, instability when walking, slight weakness in the right lower limb, numbness of the left hemisphere, visual disturbances.”

At [35] “the medical evidence states that the appellant suffers from periodic bouts of diplopia which is double vision amongst other symptoms. It is confirmed that she also had general weakness, complains of dyspepsia, repeated vomiting after eating and that the onset was in 2017.”

At [36] “the evidence is capable of indicating that the appellant has had the condition since prior to the specified date and has continued to require her sponsor sisters’ care after marriage, both before 31/12/2020 and at date of application. I find that she has shown it is probable that she continues to have care and support needs.”

At [37] the FTIJ finds that the medical evidence lends weight to her claim of dependency upon the sponsor.

At [38] – [39] the FTIJ considers financial remittance evidence and finds, “I am satisfied that transfers have been made to the appellant for the appellant’s care and support needs and on serios health grounds, so that she has some financial evidence lending weight to her claim that she has no one else who can assist her.”

At [40] The FTIJ finds “the sponsor’s husband has been resident in the UK in accordance with the EUSS rules as he was granted status prior to July 2021”.

The Tribunal’s application of the Immigration Rules

At [41] the FTIJ finds that the Appellant can be classed as a family member of a relevant EEA citizen if she is a “Dependent Relative” before the specified date and the dependency continues at the date of application.

At [42] the FTIJ finds, “she is the sibling and I find that she has shown circumstances of serious health grounds prior to the specified date and continuing at the date of application such that it is probable that she cannot meet her essential living needs having regard to her health without the material support of the relevant sponsor/spouse.”

At [43] the FTIJ finds that the “Respondent’s reasons included that her application was made after 01/07/2021 and is on the basis of a sponsor granted EUSS status as a joining family member who the respondent found cannot act as a relevant sponsor for the purposes of the application. However, the rules also include dependent relatives of the spouse of a relevant EEA citizen. The spouse’s application was not granted on the basis that he was a joining family member but was in the first instance.”

At [45] the FTIJ finds, “that the appellant can therefore rely on her Sponsor and her husband as the Relevant Sponsor.”

At [46] the FTIJ finds, “that the appellant has supplied sufficient evidence to indicate that she is related as a sister to the sponsor who is the spouse of a relevant EEA citizen, had and still has no other person to assist her.”

At [47] the FTIJ finds “that the appellant has supplied sufficient evidence to indicate that she is related as a sister to the sponsor who is the spouse of a relevant EEA citizen, had and still has no other person to assist her.”

At [48] the FTIJ finds that “the appellant has shown with medical evidence that she is a dependent relative, was so before the specified date, of a relevant EEA citizen (or of their spouse or civil partner) and the dependency (or, as the case may be, their membership of the household or their strict need for personal care on serious health grounds) continues to exist at the date of application (or did so for the period of residence relied upon).”

At [49] the FTIJ finds that “the appellant meets the definition of a dependent relative under (a)(i)(aa), (bb) or (ii) as a family member of a relevant EEA citizen (e) as they are the dependent relative, were so of the spouse of the relevant EEA citizen as described in (a) before the specified date. Their membership of the household or their strict need for personal care on serious health grounds) continues to exist at the date of application (or did so for the period of residence relied upon) the family relationship continues to exist at the date of application.”

At [50] the FTIJ concludes, “I allow the appeal on the basis that the appellant is a dependant relative of a relevant sponsor eligible for EUSS pre-settlement.”

Grant of PTA and Grounds of Appeal

10. On 10 June 2025, First-tier Tribunal Judge Le Grys granted the SSHD permission to appeal the Decision of FTIJ Browne without restriction.

11. In grounds of appeal dated 8 May 2025, as settled by Mr Deller at the Home Office Specialist Appeals Team, the SSHD advanced the following grounds of appeal.

1. The Judge of the First-tier Tribunal has made a material error of law in the Determination. Judge Browne has apparently become confused by mixing upon two different applications without appreciating that for a number of distinct reasons identified in the Reasons for Refusal Letter the Appellant was unable to meet the requirements of Appendix EU either as a joining family member of a relevant sponsor or as the family member of a relevant EEA citizen. Notwithstanding findings of dependence which may well have been properly open, the Judge could not lawfully get past the facts that,

(i) the relationship between appellant and sponsor was not within the definitions in Annex 1,

(ii) that any informal de facto parental responsibility did not meet the requirement for the sponsor to be a parent,

(iii) that the appellant’s sister had been granted her leave under paragraph EU 2 or 3 but as a joining family member of her husband,

(iv) that the provision relating to a strict need for personal care was an “Extended Family Member provision” not preserved by the Withdrawal Agreements which had not in any event been facilitated by the issue of a relevant document.

2. Judge Browne appears to have focussed entirely too simplistically an whether “dependent relative” meant simply “dependent” and “a relative” with no regard to the careful unpacking in the reasons for refusal letter as to why the application(s) could not succeed. The Judge is unclear as to what appeal against what decision was being considered.

3. In summary, of the many reasons given for refusal Judge Browne dealt adequately at best with the question of dependency, missing the impermissible relationship, the lack of formal recognition of any in loco parentis status, the fact of Elena Pirogan’s status under EUSS having been granted under paragraph EU 2A or EU3A and not EU 2 or EU3.

4. The Secretary of State seeks permission to appeal, an oral hearing if this is granted and the setting aside of Judge Browne’s determination for material error of law.

12. There was no Rule 24 reply.

13. The matter now comes before me to determine whether there is an error of law in the Decision of the Judge pursuant to s.12(1) of the Tribunal Courts and Enforcement Act 2007. If I find an error, I must then determine whether the error is material, such that the Decision should be set aside. If the Decision is set aside, I must decide whether to remake the Decision in the Upper Tribunal or remit the appeal to the First-Tier Tribunal, pursuant to s.12(2) of the 2007 Act.

ERROR OF LAW HEARING

14. At the outset of the hearing, I ensured that the Appellant and the interpreter understood each other before the Appellant, her Sponsor and her brother-in law confirmed that they were without any papers. I therefore ensured that the Upper Tribunal stitched bundle, consisting of 62 pages (“SB”), was copied so that the Appellant and her family could follow proceedings with the assistance of the interpreter.

15. Bearing in mind the complexity of the issues before me and the fact that the Appellant is a vulnerable litigant in person, I directed Ms Ahmed for the SSHD to ensure that her submissions were in layman’s terms and that she gave sufficient pauses so that the interpreter could take the Appellant and her family through the documents during oral argument.

LAW

16. For the purposes of the pleaded grounds of appeal before me, I set out the essential legal framework under the immigration rules as follows:

Immigration Rules Appendix EU:

Persons eligible for limited leave to enter or remain as a relevant EEA citizen or their family member, as a person with a derivative right to reside or with a Zambrano right to reside or as a family member of a qualifying British citizen

EU14.
The applicant meets the eligibility requirements for limited leave to enter or remain where the Secretary of State is satisfied, including (where applicable) by the required evidence of family relationship, that, at the date of application, condition 1 or 2 set out in the following table is met:

Table 1:

(a) The applicant is:
[….]
(ii) a family member of a relevant EEA citizen
and
[….]
(c) Where the applicant is a family member of a relevant EEA citizen, there has been no supervening event in respect of the relevant EEA citizen

Annex 1 definitions:

Family Member of a Relevant EEA Citizen

A person who does not meet the definition of ‘joining family member of a relevant sponsor’ in this table, and who has satisfied the Secretary of State, including by the required evidence of family relationship, that they are (and for the relevant period have been), or (as the case may be) for the relevant period (or at the relevant time) they were:

[…….]

(e) the dependent relative, before the specified date, of a relevant EEA citizen (or of their spouse or civil partner, as described in sub-paragraph (a) above) and the dependency (or, as the case may be, their membership of the household or their strict need for personal care on serious health grounds) continues to exist at the date of application (or did so for the period of residence relied upon)

[….]

Dependant Relative

the person:
(a)(i)(aa) is a relative (other than a spouse, civil partner, durable partner, child or dependent parent) of their sponsoring person; and
(bb)
[…..]
(ii) is a person who is subject to a non-adoptive legal guardianship order in favour (solely or jointly with another party) of their sponsoring person;
[……]
(b) holds a relevant document as the dependent relative of their sponsoring person for the period of residence relied upon.

Relevant Document

(a)(i)(aa) a family permit, registration certificate, residence card, document certifying permanent residence, permanent residence card or derivative residence card issued by the UK under the EEA Regulations on the basis of an application made under the EEA Regulations before (in the case, where the applicant is not a dependent relative, of a family permit) 1 July 2021 and otherwise before the specified date (or, in any case, a letter from the Secretary of State, issued after 30 June 2021, confirming their qualification for such a document, had the route not closed after 30 June 2021); or
(bb) […..] or
(ii) a document or other evidence equivalent to a document to which sub-paragraph (a)(i)(aa) above refers, and issued by the Islands under the relevant legislation there evidencing the entitlement to enter or reside in the Islands or the right of permanent residence in the Islands through the application there of section 7(1) of the Immigration Act 1988 (as it had effect before it was repealed) or under the Immigration (European Economic Area) Regulations of the Isle of Man; or
(iii) a biometric residence card issued by virtue of having been granted limited leave to enter or remain under this Appendix; or
(iv) an entry clearance in the form of an EU Settlement Scheme Family Permit granted under or outside Appendix EU (Family Permit) to these Rules; and
(b) […..]
(c) […..]
(d) […..]
(e) […..]
(ii) it is a specified relevant document

Specified Relevant Document

(a) within the meaning of sub-paragraph (a)(i)(aa) of the entry for ‘relevant document’ in this table, a residence card, permanent residence card or derivative residence card which:

(i) was issued by the UK under the EEA Regulations on the basis of an application made on or after 6 April 2015; and
(ii) has not expired by more than 18 months at the date of application; or

(b) a biometric residence card as described in sub-paragraph (a)(iii) of the entry for ‘relevant document’ in this table, which has not expired by more than 18 months at the date of application.

DISCUSSION

17. Whilst the grounds of appeal readily concede that the “dependence” findings were lawfully open to Judge Browne, the grounds argue that the FTIJ became “confused by mixing upon two different applications without appreciating that for a number of distinct reasons identified in the Reasons for Refusal Letter the Appellant was unable to meet the requirements of Appendix EU either as a joining family member of a relevant sponsor or as the family member of a relevant EEA citizen.”

18. As summarised above, although Judge Browne recognised that there was only one RFRL under appeal dated 8 July 2024, he evidently believed that the Appellant had made additional applications. As accepted by the Appellant at the error of law appeal, she had made only one application dated 3 March 2024 as a “joining family member of a relevant sponsor”. Neither party nor I could understand why the Judge had believed that the papers referred to alternative applications. There were no alternative applications or decisions contained within the FTT bundle and the Appellant in any event specifically appealed the RFRL dated 8 July 2024.

19. The way that Judge Browne appears to deal with the alternative application issue at [18] is to treat it as an application that post-dated the application dated 3 March 2024. The FTIJ then invoked immigration rule EU10(2) and treated the alternative application as an application to vary the application dated 3 March 2024. Whether this would have been open to the FTIJ to do had there been a later application, is outside the scope of the grounds of appeal and I say no more about it.

20. The critical point to appreciate is that the FTIJ ultimately allowed the appeal at [49] on the basis that the Appellant was a “Dependent Relative” of an EEA citizen which required him to accept that the Appellant held a “Relevant Document as the Dependent Relative of their sponsoring person for the period of residence relied upon” as required at (b) of the Dependant Relative definition under Annex 1 of Appendix EU.

21. In the grounds of appeal before me, it is argued that the Appellant does not hold a Relevant Document and therefore it was not open to the Judge to allow the appeal on that basis.

Background to the Requirement of a Relevant Document and Brexit

22. Under s.1 of the Withdrawal Act 2018, the European Communities Act 1972 was repealed on “exit day” at 11pm on 31 January 2020, as defined under s.20 of the 2018 Act. The European Communities Act gave direct effect to EU Directive 2004/38, which set out the rules for the free movement of EEA citizens and their family members in the UK before its repeal. “Exit day” was then followed by an implementation/transitionary period, which ended at 11pm on 31 December 2020, pursuant to s.39 of the European Withdrawal Agreement Act 2020. During this transitionary period the 1972 Act continued to have effect in UK law pursuant to s.1A of the 2018 Act as amended by the 2020 Act.

23. Under Article 1 of the Directive 2004/38 (“the Directive”), Union citizens and their family members were guaranteed a right of permanent residence in territory of a member state, except on grounds of grounds of public policy, public security or public health. Under Article 2 “Family Members” where designated as: (a) spouse; (b) partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State; (c) direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b); and (d) dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b).

24. Article 3 of the Directive dealt with the free movement of beneficiaries, that is, “other family members” who are not designated as family members under Article 2. In the instant appeal, the Appellant would have fallen within this category as the sister of her sponsor. Critically the entry and residence of beneficiaries to the UK under Article 3 was regulated in accordance with national legislation and specifically required that “the host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people.”

25. The way in which Article 3 was administered in UK law was under the Immigration (European Economic Area Regulations 2016 (“EEA Regs”). Under regulation 18(5) and (6) the SSHD was required to undertake an “extensive examination of the personal circumstances of the applicant” and only upon such an examination could the SSHD grant a “residence card” to the applicant. Unlike the free movement provisions of Article 2 which gave a right of residence, Article 3 was a discretionary power held by the SSHD to grant admission and a residence card to “other family members”; or “extended family members” as they are referred to under the 2016 Regs.

26. Under Article 10 of the Withdrawal Agreement dated 19 October 2019 (which governs the rights of EU nationals and their family members to continue to reside in the United Kingdom following the departure of the United Kingdom from the European Union and the end of a transition period on 31 December 2020), the rights of “extended family members” were preserved in following terms,

“2. Persons falling under points (a) and (b) of Article 3(2) of Directive 2004/38/EC whose residence was facilitated by the host State in accordance with its national legislation before the end of the transition period in accordance with Article 3(2) of that Directive shall retain their right of residence in the host State in accordance with this Part, provided that they continue to reside in the host State thereafter.”

“3. Paragraph 2 shall also apply to persons falling under points (a) and (b) of Article 3(2) of Directive 2004/38/EC who have applied for facilitation of entry and residence before the end of the transition period, and whose residence is being facilitated by the host State in accordance with its national legislation thereafter.”

27. As such, it can be seen that the intention under Articles 10(2) and (3) was to preserve only the rights of extended family members who had applied for and been considered (“facilitated”) by the SSHD under regulation 18(5) of 2016 Regs before 31 December 2020.

28. Under Article 18 of the Withdrawal Agreement the UK created the EUSS scheme and Appendix EU for those “who reside in its territory in accordance with the conditions set out in this Title, to apply for a new residence status which confers the rights under this Title and a document evidencing such status”.

29. As such, it can be seen from the definition of a “Dependent Relative” under Annex 1 of Appendix EU, as set out above, that this is an analogous designation to the “extended family member” designation under reg 18(5) and (6) of the 2016 regs and the “other family member” designation under Article 3 of the Directive. Once this is understood, it is clear that the Annex 1 requirement for a “Relevant Document” that was issued by the UK authorities prior to the specified date on 31 December 2020, is the same as the requirement under reg 18(5) of the 2016 regs and Article 3 of the Directive. The requirement for a Relevant document as a “Dependant Relative” under Appendix EU, is therefore a requirement to demonstrate that the applicant held a right under EU Law before 31 December 2020 which is capable of being preserved.

30. As set out in the headnote guidance of Batool and others (other family members: EU exit) [2022] UKUT 00219 (IAC),

(1) An extended (oka other) family member whose entry and residence was not being facilitated by the United Kingdom before 11pm GMT on 31 December 2020 and who had not applied for facilitation of entry and residence before that time, cannot rely upon the Withdrawal Agreement or the immigration rules in order to succeed in an appeal under the Immigration (Citizens' Rights Appeals) (EU Exit) Regulations 2020.

31. In discussions with the Appellant and her family members at the error of law hearing, it was clear that the Appellant entered the UK on 8 December 2023 and had not made any application for her residence to be facilitated in the UK before the specified date on 31 December 2020. As such, she did not hold a residence document as defined under the immigration rules, as set out above.

32. Fundamentally, I find that the FTIJ did not appreciate the meaning of a “Relevant Document” as defined under the Immigration Rules.

33. In the light of this position, I confirmed to the parties at the hearing that I found that the FTT had materially erred in law when allowing the appeal on the basis that the Appellant was a “Dependent Relative” under Appendix EU. However, I made clear that the grounds of appeal did not impugn the FTIJ’s consideration of dependence and as such, those findings were preserved.

CONCLUSION ON ERROR OF LAW

34. For the reasons above, I find that the Decision of First-tier Tribunal Browne contains a material error of law such that it must be set aside pursuant to s.12(1) of the 2007 Act. I preserve all findings that the Appellant is dependent upon her Relevant Sponsor.

DISPOSAL

35. I then indicated to the parties that it appeared plain to me that there was no dispute of fact and that this was therefore an appeal which I could remake on the papers before me pursuant to s.12(2) of the 2007 Act.

36. In reply neither party opposed my remaking the appeal on the papers. Ms Ahmed for the SSHD simply invited me to dismiss the appeal on the basis that the immigration rules were not met for the reasons set out in the RFRL. In reply, the Appellant, her sister-Sponsor and her brother-in-law each read a brief submission emphasising the strength of the family bond between them, the extent of the Appellant’s dependence upon her sponsor and the importance of the family unit remaining together.

37. As such, I indicated to the parties that I would reserve my remaking Decision, which I would produce in due course with reasons.

REMAKING

38. Pursuant to s.12(4)(a) and (b) of the Tribunals, Courts and Enforcement Act 2007 the Upper Tribunal can, when remaking a decision of the First-tier Tribunal which has been set aside, make any decision which the First-tier Tribunal could make if the First-tier Tribunal were re-making the decision, and it may make such findings of fact as it considers appropriate.

FINDINGS
39. Under regulation 3(1)(c) of The Immigration (Citizens' Rights Appeals) (EU Exit) Regulations 2020 (the “EU Exit Regs”) the Appellant,
“May appeal against a decision made on or after exit day –
(c) not to grant any leave to enter or remain in the United Kingdom in response to P's relevant application”
40. As the decision under appeal is dated 8 July 2024, and exit day was at 11pm on 31 January 2020 (s.20 the European Withdrawal Act 2018), I am satisfied that the Appellant has a valid appeal before me.
41. Under regulation 8 of the EU Exit Regs, there are 2 available grounds of appeal. In summary, the first ground is that the decision under appeal is not in accordance with the Withdrawal Agreement and the second is that the decision under appeal is not in accordance with the provision of the Immigration Rules by virtue of which it was made.
Appeal under the Withdrawal Agreement
42. To succeed under the Withdrawal Agreement the Appellant must come within the “Personal Scope” of Article 10. In this regard, it is not in dispute that the Appellant entered the UK on 8 December 2023 and that she is the sister of her UK Sponsor.
43. As such, she cannot meet Article 10(1), because she was not an EEA citizen exercising treaty rights in the UK before the 31 December 2020 and she is not a family member as defined under Article 2 of the 2004/38 Directive (i.e. (a) spouse; (b) partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State; (c) direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b); and (d) dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b)).
44. Equally, she cannot meet Article 10(2) as an “extended family member” because her residence in the UK was not facilitated in accordance with national legislation before 31 December 2020.
45. I therefore dismiss her appeal under the Withdrawal Agreement.

Appeal under the Immigration Rules
46. On 3 March 2024 the Appellant submitted an EUSS application as a “joining family member of a Relevant Sponsor”.
47. The first point taken by the SSHD in the RFRL is that the Appellant did not come within the required proximity of relationship as required under the definition of a “Joining Family Member of a Relevant Sponsor” in Annex 1 of Appendix EU:

Annex 1

Joining Family Member of a Relevant Sponsor

A person who has satisfied the Secretary of State, including by the required evidence of family relationship, that they are (and for the relevant period have been), or (as the case may be) for the relevant period (or at the relevant time) they were:

(a) spouse or civil partner of a relevant sponsor
(b) specified spouse or civil partner of a Swiss citizen;
(c) durable partner of a relevant sponsor,
(d) child or dependent parent (including grandchild, or great-grandchild, grandparent, or great-grandparent) of a relevant sponsor.
(e) child or dependent parent of the spouse or civil partner of a relevant sponsor.
48. I am in complete agreement the SSHD and find that the Appellant, as the sister of her Relevant Sponsor, does not come within the scope of this definition and therefore cannot meet this requirement.
49. The second point taken by the SSHD is that the Appellant’s Relevant Sponsor had acquired her pre-settled status under immigration rule EU3A as a joining family member, contrary to the definition of Relevant Sponsor under Annex 1 of Appendix EU. In this regard, I note that the Sponsor’s grant of status letter at SB [29], confirms that her leave was granted under immigration rule EU3A, as argued by the SSHD.
50. The definition of Relevant Sponsor under Annex 1 is as follows:

Relevant sponsor

(a) where the date of application by a joining family member of a relevant sponsor is after the specified date and before 1 July 2021:

(i) an EEA citizen (in accordance with sub paragraph (a) of that entry in this table) who, having been resident in the UK and Islands for a continuous qualifying period which began before the specified date, has been granted:
(aa) indefinite leave to enter or remain under paragraph EU2 of this Appendix (or under its equivalent in the Islands), which has not lapsed or been cancelled, revoked or invalidated (or is being granted that leave under that paragraph of this Appendix or under its equivalent in the Islands); or
(bb) limited leave to enter or remain under paragraph EU3 of this Appendix (or under its equivalent in the Islands), which has not lapsed or been cancelled, curtailed or invalidated (or is being granted that leave under that paragraph of this Appendix or under its equivalent in the Islands); or
[……]
51. It is undisputed that the Appellant’s application was made on 3 March 2024, after the 1 July date specified under (a) of the Relevant Sponsor definition. As such, the Relevant Sponsor must have been granted pre-settled status under EU3. In the light of the Sponsor’s grant of status letter confirming her grant under EU3A, the Sponsor evidently does not meet this definition and therefore the immigration rules are not met in this regard.
52. I note that FTIJ Browne found at [31] of his Decision that the Appellant’s sister’s husband would be able to stand as an alternative Sponsor because he was granted status under EU3 on 6 January 2021. However, I find that the brother-in-law cannot assist the Appellant because she does not have the required proximity of relationship with him as required under the definition of a “Joining Family Member of a Relevant Sponsor” under Annex 1.
53. For completeness, for the reasons set out in my error of law Decision, the Appellant cannot succeed as a Dependent Relative of an EEA Citizen because she does not possess a Relevant Document.
54. As such, I find that the Appellant cannot succeed under the Immigration Rules.
CONCLUSION
55. I therefore find that the Appellant cannot succeed under the Withdrawal Agreement or the Immigration Rules and I dismiss her appeal.

NOTICE OF DECISION

1. The Decision of First-tier Tribunal Judge Browne involved the making of an error on a point of law requiring it to be set aside with all findings of dependence preserved.

2. I remake and dismiss this appeal under the Withdrawal Agreement and the Immigration Rules.

D. Clarke

Judge of the Upper Tribunal
Immigration and Asylum Chamber

14 December 2025