Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-001445
First-tier Tribunal No: EA/50752/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

16th June 2026

Before

UPPER TRIBUNAL JUDGE SHERIDAN

Between

Secretary of State for the Home Department
Appellant
And

SAM
(ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Ms Gilmour, Senior Home Office Presenting Officer
For the Respondent: Mr Talacchi, Counsel instructed by Waran & Company

Heard at Field House on 3 June 2026

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity. No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
Introduction
1. This appeal is brought by the Secretary of State. However, for convenience I will refer to the parties as they were designated in the First-tier Tribunal.
2. The appellant is a citizen of Somalia. On 24 October 2023 she applied under the EU Settlement Scheme to join the man she believed was her father (“the sponsor”) in the UK. On 26 July 2024 her application was refused on the basis that DNA evidence conclusively showed that the appellant is not the sponsor’s child and therefore the appellant is not a “family member of a relevant EEA citizen”.
3. The appellant appealed to the First-tier Tribunal, where her appeal came before Judge of the First-tier Tribunal Hallen. In a decision promulgated on 12 January 2026, the judge allowed the appeal. The respondent now appeals against this decision.
Background
4. The appellant is one of four siblings. DNA evidence establishes that the other three siblings are the biological children of the sponsor but that the appellant is not. Until the DNA test was taken the sponsor had understood that he was the father of all four of the children. The four children (including the appellant) have the same mother, who is deceased. The sponsor has remarried and lives in the UK with his new wife, who is a Swedish citizen.
Decision of the First-tier Tribunal
5. The judge identified that the applicable legal framework is set out in Appendix EU (Family Permit) and that the appellant needed to establish that she is “a family member of a relevant EEA citizen”.
6. The judge found that the appellant is a child of a relevant EEA citizen and allowed the appeal. The judge’s reasoning is set out in paragraph 16, where the following is stated:
I am satisfied on the unique facts of this case that the appellant is a family member of a relevant EEA citizen. She was born as one of four siblings and was the daughter of [the sponsor] and part of the family unit in Somalia and then subsequently in Kenya. Her father is married to an EEA citizen and the appellant's mother is now dead. [The sponsor] continued to raise the appellant believing her to be his biological daughter and continues to do so to this very day. He remarried an EEA citizen namely [ ] on 1 October 2020 in Kenya and he arrived in the UK in December 2021. [His wife] is the stepmother of the four siblings. [The sponsor] was given EU presettlement statue in the UK as [his wife’s] spouse. I am satisfied that the appellant is a child of a relevant EEA citizen and the family relationship existed before the specified date and continues to exist at the date of the application. Accordingly, I allow this appeal.
Grounds of appeal and submissions
7. The respondent argues that the judge misapplied the definition of “family member of a relevant EEA citizen.”
8. I am grateful to Ms Gilmour and Mr Talacchi for their succinct and clear submissions, which I have reflected on carefully before reaching my decision
Error of law
9. The Immigration Rules applicable to the appellant are set out in Appendix EU (Family Permit) of the Immigration Rules. These specify that in order for the appellant to meet the eligibility requirements she must, amongst other things, be “a family member of a relevant EEA citizen”.
10. The term “a family member of a relevant EEA citizen” is defined in Annex 1 of Appendix EU (Family Permit) (“Annex 1”). The definition includes “the child….of a relevant EEA citizen…or of their spouse”.
11. The word “child” is defined as a “direct descendant”. In addition, the word “child” is defined to include the following:
(a) ‘child’ includes:
(i) an adopted child of; or
(ii) a child born through surrogacy (where recognised in UK law or Islands law) for; or
(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 their spouse or civil partner, but ‘child’ does not include a child cared for by a relevant EEA citizen (or, as the case may be, by a qualifying British citizen) or their spouse or civil partner solely by virtue of a formal or informal fostering arrangement.
12. The term “adopted child” is defined as “a child adopted in accordance with a relevant adoption decision”.
13. The term “relevant adoption decision” is defined as:
a decision taken:
(a) by the competent administrative authority or court in the UK or the Islands; or
(b) by the competent administrative authority or court in a country whose adoption orders are recognised by the UK or the Islands; or
(c) in a particular case in which that decision in another country has been recognised in the UK or the Islands as an adoption
14. For the appellant to fall within the scope of “a family member of a relevant EEA citizen…or of their spouse” she would have to be the sponsor’s child as defined in Annex 1. However, she does not, on any legitimate view, fall within the definition of a “child”. This is because she is not the sponsor’s direct descendant and she does not fall within any of the specific categories listed in the definition of a child (as set out above in paragraph 11). Mr Talacchi argued that although the appellant was not adopted she should be treated as falling within this category as, on the specific facts of this case, there had been a “de facto” adoption. The difficulty with this argument is that the term “adopted child” is defined as a “child adopted in accordance with a relevant adoption decision” and the appellant has not been adopted in accordance with a relevant adoption decision. The definition is very specific and does not include “de facto” adoption or something similar.
15. Mr Talacchi argued that the definition of an adopted child does not exclude informal adoption. This argument is misconceived. The definitions in Annex 1 stipulate what is included, not what is excluded; and there is nothing in the definition of “child” or “adopted child” that permits a child in the appellant’s circumstances to be treated as if they had been adopted. Moreover, there is no residual power or discretion under Appendix EU (Family Permit) that would permit a judge to treat a person not falling within the scope of a definition in Annex 1 as if they did.
16. On any legitimate view, the appellant does not fall within the scope of the definition of a family member of a relevant EEA citizen or their spouse because she is not the child, as that term is defined in Annex 1, of the sponsor. It was therefore not open to the judge to find that the appellant is the sponsor’s child for the purposes of the application under Appendix EU (Family Permit). For this reason, the decision of the First-tier Tribunal cannot stand.
Re-made decision
17. The appellant appeals against the respondent’s decision of 26 July 2024 refusing her application under the EU Settlement Scheme. Her right of appeal is under the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020. This allows two grounds to be pursued. These are (a) that the decision is not in accordance with Appendix EU (Family Permit), and (b) that the decision breaches the appellant’s rights under the EU Withdrawal Agreement.
18. It was not argued - either before the First-tier Tribunal or before me - that the respondent’s decision breaches the appellant’s rights under the EU Withdrawal Agreement. I have therefore not considered this.
19. The appellant argues that the respondent’s decision was not in accordance with Appendix EU (Family Settlement). However, for the reasons explained above, the appellant is not the sponsor’s child (as defined in Annex 1) and therefore is not a family member of a relevant EEA citizen (as defined in Annex 1). Accordingly, the appellant is not entitled to an EU Settlement Scheme Family Permit to join the sponsor in the UK. The decision to refuse the appellant’s application under the EU Settlement Scheme was therefore in accordance with Appendix EU (Family Permit).
Notice of Decision
20. The decision of the First-tier Tribunal involved the making of an error of law and is set aside. I re-make the decision and dismiss the appeal.
D Sheridan
Judge of the Upper Tribunal
Immigration and Asylum Chamber

4 June 2026