Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-004312
First-tier Tribunal No: EU/52770/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 2 March 2026

Before:

THE HON. MR JUSTICE LAVENDER, PRESIDENT
UPPER TRIBUNAL JUDGE RIMINGTON

Between

TANIA TITO
(NO ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Arthur Cobra instructed by Cobra Legal
For the Respondent: Benjamin Hulme, Home Office Presenting Officer

Heard at Field House on 8 December 2025

DECISION AND REASONS

(1) Introduction
1. This is an appeal brought with leave granted by the First-tier Tribunal against the decision of First-tier Tribunal Judge Ruth dated 16 July 2025 to dismiss the appellant’s appeal against the respondent, Secretary of State’s decision of 20 March 2024 to refuse the appellant's application for leave to remain in the United Kingdom under Appendix EU to the Immigration Rules (“Appendix EU”), which gives effect to the EU Settlement Scheme.
2. The sole issue on this appeal is whether the appellant falls within the definition of a “child” set out in Annex 1 to Appendix EU (”Annex 1”) by virtue of the fact that a guardianship order (“the Bolivian order”) was made in relation to the appellant by a Bolivian Court, appointing as her guardian the appellant’s aunt, Ana Isabel Matienzo Tito. This in turn depends on whether the Bolivian order falls within the definition in Annex 1 of a “special guardianship order (within the meaning of section 14A(1) of the Children Act 1989)”.
(2) Background
3. The appellant was born on 2 November 2005 and is a citizen of both Brazil and Bolivia, having been born in Brazil to a Bolivian mother. Her parents were not married and she has never met her father. When the appellant was 6, she accompanied her mother on her return to Bolivia. The appellant’ mother died on 15 June 2023.
4. By a petition dated 7 July 2023 the appellant’s aunt applied to the Bolivian court for guardianship of the appellant. The Bolivian order was made on 1 November 2023, one day before the appellant’s 18th birthday.
5. It appears from the Bolivian order that it was made on an application for what was known as “Ordinary Guardianship” and that the appellant attained legal age in Bolivia on her 18th birthday. The judge recorded in the Bolivian order that the appellant’s aunt said that:
“although her niece will reach the legal age on 2 November however, in other countries, she is still a minor, stating in the same way that through guardianship she may benefit from making those trips or requests for family reintegration abroad where the legal age is 21.”
6. The appellant arrived in the United Kingdom on 12 January 2024. On 22 January 2024 she made her application under Appendix EU, with her aunt as her sponsor.
7. The respondent refused the application on 20 March 2024, on the grounds that the appellant was not a “joining family member of a relevant sponsor”, since she did not fall within the definition of a “child”.
8. The appellant’s aunt is a Spanish national resident in the United Kingdom and it was not disputed that she was a “relevant sponsor”. Indeed, on 25 April 2024 she was granted indefinite leave to remain in the United Kingdom under paragraph EU2 of Appendix EU.
9. Judge Ruth dismissed the appellant’s appeal, holding that the relevant provisions of Appendix EU did not apply to orders made by foreign courts and noting also that there was no expert evidence before him as to whether there was any equivalence between a special guardianship order under the Children Act 1989 and the Bolivian order.
(3) Relevant provisions of Appendix EU
10. Paragraph 3A of Appendix EU provides as follows:
“The applicant will be granted five years’ limited leave to enter (where the application is made outside the UK) or five years’ limited leave to remain (where the application is made within the UK) as a joining family member of a relevant sponsor where:
• A valid application has been made in accordance with paragraph EU9;
• The applicant does not meet the eligibility requirements for indefinite leave to enter or remain in accordance with paragraph EU11A, but meets the eligibility requirements for limited leave to enter or remain in accordance with paragraph EU14A; and
• The application is not to be refused on grounds of suitability in accordance with paragraph EU15 or EU16.”
11. Paragraph 14A of Appendix EU provides as follows:
“The applicant meets the eligibility requirements for limited leave to enter or remain as a joining family member of a relevant sponsor where the Secretary of State is satisfied, including by the required evidence of family relationship, that, at the date of application and in an application made after the specified date, the condition set out in the following table is met:
Condition Is met where:
(a) The applicant is:
(i) a joining family member of a relevant sponsor;”
12. The definition of “joining family member of a relevant sponsor” in Annex 1 includes the following:
“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:
…
(d) the child or dependent parent of a relevant sponsor, …”
13. The definition of “child” is set out in Annex 1. It includes a child under the age of 21 or, in certain circumstances, child aged 21 or over. The definition includes the following:
“in addition:
(a) ‘child’ includes:
…
(iii) a child in respect of whom a special guardianship order (within the meaning of section 14A(1) of the Children Act 1989) is in force appointing as their special guardian; or
(iv) a child in respect of whom an order has been made under section 5 of the Children Act 1989 appointing as their guardian; or
(v) a child subject to a permanence order made under section 80 of the Adoption and Children (Scotland) Act 2007 vesting parental responsibilities and parental rights in a person who is; or
(vi) a child who has a guardian appointed under section 7 of the Children (Scotland) Act 1995, or who is living with a person pursuant to an order made under section 11 of that Act, and that guardian or other person is; or
(vii) a child in respect of whom an order has been made under Article 159 of the Children (Northern Ireland) Order 1995, or in respect of whom an appointment has been made under Article 160 of that Order, appointing as their guardian a person who is; or
(viii) a child who has a guardian appointed under section 12 or 14 of the Children (Guernsey and Alderney) Law 2008 or section 12 or 13 of the Children (Sark) Law 2016, or who is living in the care of a person pursuant to an order made under section 14 of the 2008 Law or section 13 of the 2016 Law, and that guardian or other person is; or
(ix) a child in respect of whom an order under Article 7 of the Children (Jersey) Law 2002 is in force appointing as their guardian; or
(x) a child in respect of whom a special guardianship order (within the meaning of section 17A of the Children and Young Persons Act 2001 of Tynwald) has been made appointing as their special guardian; or
(xi) a child in respect of whom an order has been made under section 6 or 7 of the Children and Young Persons Act 2001 of Tynwald appointing as their guardian,
a relevant EEA citizen (or, as the case may be, a qualifying British citizen or a relevant sponsor)”
14. The focus of this appeal was on paragraph (a)(iii) of this part of the definition, but, in the light of some of the appellant’s submissions, it is relevant to note also paragraphs (a)(iv) to (xi).
(4) The Children Act 1989
15. The appointment of guardians is provided for in section 5 of the Children Act 1989.
16. Special guardianship orders are provided for in sections 14A to 14G of the Children Act 1989. Section 14A(1) provides:
“A “special guardianship order” is an order appointing one or more individuals to be a child’s “special guardian” (or special guardians).”
17. Section 14A(2) provides that:
“A special guardian—
(a) must be aged eighteen or over; and
(b) must not be a parent of the child in question,
18. Contrary, however, to the appellant’s submissions, this is not a definition of the role of “special guardian”.
19. It is to be noted that section 14(A)(5)(i) provides that the individuals who are entitled to apply for a special guardianship order with respect to a child include any guardian of the child. From this it can be seen that a special guardianship order involves more than mere guardianship.
20. Section 14B deals with the making of a special guardianship by “the court”. Section 92(7) provides that “the court” means the High Court or the family court.
21. Section 14C(1) provides as follows:
“The effect of a special guardianship order is that while the order remains in force—
(a) a special guardian appointed by the order has parental responsibility for the child in respect of whom it is made; and
(b) subject to any other order in force with respect to the child under this Act, a special guardian is entitled to exercise parental responsibility to the exclusion of any other person with parental responsibility for the child (apart from another special guardian).”
22. It will be seen that section 14C(1)(b) sets out what distinguishes special guardianship from ordinary guardianship.
23. Section 105(1) defines “child” as meaning, in the Children Act 1989, and subject to an immaterial exception, “a person under the age of eighteen;” Moreover, pursuant to section 91(13), a special guardianship order made in respect of a child:
“shall, if it would otherwise still be in force, cease to have effect when he reaches the age of eighteen.”
(5) Submissions
24. The sole ground of appeal was that Judge Ruth was wrong to conclude that the Bolivian order was not a special guardianship order. In the grounds of appeal, the appellant contended that: the Bolivian order satisfies the definition of special guardianship order in the Children Act 1989; Appendix EU does not expressly provide that only an order of a court in England and Wales qualifies as a specialist guardianship order; and it was important to note that both Bolivia and the United Kingdom are parties to the Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents (“the 1961 Hague Convention”) and the Bolivian order was accompanied by the appropriate legalisation under the convention.
25. The respondent submitted in her Rule 24 response that: the Children Act 1989 only applies to English courts; the 1961 Hague Convention does not have the effect that the Bolivian order is valid in England; and, in any event, the argument based on the 1961 Hague Convention was not raised before the First-tier Tribunal.
26. Before the hearing, we invited further submissions on whether we would be assisted by any reference to textbooks on statutory construction, family law (including international family law) or the conflict of laws. The appellant filed a supplementary skeleton argument and we heard oral submissions from both parties on the issues raised therein, to which we will refer below.
(6) Decision
27. In our judgment, it is clear that only a special guardianship order made by the High Court or a family court pursuant to section 14B of the Children Act 1989 can constitute a “special guardianship order” for the purposes of Annex 1. It follows that the applicant is not a “child” as defined in Annex 1.
28. We reach this conclusion primarily as a matter of the construction of Annex 1 and of the Children Act 1989. In particular:
(1) Paragraph (a)(iii) from Annex 1 quoted above has to be seen in the context of paragraphs (a)(iv) to (xi), each of which concerns an order made in a specific jurisdiction and none of which concerns an order made by a foreign court.
(2) Section 14A(1) provides that a special guardianship order is an order appointing one or more individuals to be a child’s “special guardian” (or special guardians). That in turn directs attention to the question of what is meant by an order appointing an individual to be a child’s special guardian. The answer to that question is to be found in sections 14B, which provides for special guardianship orders to be made by “the court”, i.e. the High Court or the family court, and section 14C(1), which sets out the distinctive effect of a special guardianship order.
(3) It is clear from the context and structure of the Children Act 1989 that the term “special guardianship order” used in the Children Act 1989, including in section 14A(1), refers solely to an order made by the High Court or the family court. The relevant parts of the Children Act 1989 are not concerned with the making of orders by foreign courts or the recognition of orders made by foreign courts.
29. In the event, we were not assisted by the appellant’s submissions as set out in the supplementary skeleton argument. In particular:
(1) The fact that the Bolivian court had jurisdiction to make the Bolivian order is not relevant to the construction of Annex 1 or the Children Act 1989.
(2) The question whether a court in England and Wales might have recognised or enforced the Bolivian order is also irrelevant, since no order was made recognising or enforcing the Bolivian order.
(3) The 1961 Hague Convention is of no relevance, since it merely concerns the requirements for certifying the authenticity of public documents.
30. We make the following additional observations on matters which were not the primary focus of the submissions before us and which would only be relevant if we were wrong in our primary conclusion:
(1) The relevant part of the definition of “child” in Annex 1 refers to a child “in respect of whom a special guardianship order ( … ) is in force”. We note that:
(a) There was no expert evidence before the First-tier Tribunal or before us that the Bolivian order remained in force after the appellant’s 18th birthday on 2 November 2024, when, according to the Bolivian order, the appellant attained legal age.
(b) Pursuant to section 91(13) of the Children Act 1989, a special guardianship order made by the High Court or the family court would have ceased to have effect on 2 November 2024 and therefore would not have been in force thereafter.
(2) Judge Ruth was entitled to observe that there was no expert evidence before him as to whether there was any equivalence between a special guardianship order under the Children Act 1989 and the Bolivian order. In particular:
(a) There was no evidence that Bolivian law has an equivalent concept to the concept of special guardianship in the Children Act 1989.
(b) As noted above, the Bolivian order was expressed to be made in response to an application for “Ordinary Guardianship”.
(c) The Bolivian order did not contain any provision having the effect set out in section 14C(1)(b) of the Children Act, which, as we have noted, is characteristic of a special guardianship order. (This is not surprising, since, following the death of the appellant’s mother, there does not appear to have been anyone else with parental responsibility for the appellant.)
(7) Notice of Decision
31. We find that there was no error of law on the part of the First-tier Tribunal and we dismiss the appellant’s appeal.

The Hon. Mr Justice Lavender
Upper Tribunal Judge Rimington

Judges of the Upper Tribunal
Immigration and Asylum Chamber

2nd March 2026