Tribunal decisions

The decision

IN THE UPPER TRIBUNAL Case No: UI-2026-001514
IMMIGRATION AND ASYLUM CHAMBER
First-tier Tribunal No: EU/58412/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 17 July 2026

Before

Deputy upper tribunal JUDGE Kelly

Between

THE ENTRY CLEARANCE OFFICER
Appellant
and

mUHAMMAD HASHIM KHURRAM
(ANONYMITY NOT ORDERED)
Respondent

Representation:
For the Appellant: Ms E Blackburn, Senior Home Officer Presenting Officer
For the Respondent: Unrepresented

Heard at Bradford on 3rd July 2026

DECISION AND REASONS
1. Muhammad Hashim Khuram is a citizen of Pakistan who was born on 5th October 2023. He applied for a European Union (EU) Family Permit to join Ghulam Hussain (hereafter, ‘the sponsor’) in the United Kingdom. The sponsor is a German citizen and the appellant’s maternal grandfather. The Entry Clearance Officer refused the appellant’s application on 5th November 2024. However, his appeal against that refusal was allowed by First-tier Tribunal Judge Thorne, without a hearing, on 9th January 2026. The Secretary of State has been granted permission to appeal against Judge Thorne’s decision. Hence the matter came before me.
2. For convenience, I shall hereafter describe the parties in accordance with their status in the First-tier Tribunal; that is to say, Master Khurram will be referred to as “the appellant”, and the Entry Clearance Officer will be referred to as “the respondent”.
The issues before the First-tier Tribunal
3. The only issues in the appeal before the First-tier Tribunal (FtT) - as with the appeals of the appellant’s mother and three older siblings to which it was linked – was whether the appellant had proved on a balance of probabilities that he was (i) related as claimed to the sponsor (see paragraph 1, above), and (ii) dependent upon the sponsor (in whole or in part) to meet his essential living needs. The judge resolved both these issues in favour of the appellant, and the respondent does not challenge those findings in this appeal.
The ground of appeal.
4. There is but a single ground of appeal; namely that, in supposed contradistinction to his three older siblings, the appellant was incapable of meeting the definition contained within Annex 1 of Appendix EU (Family Permit) to the Immigration Rules of “a family member of a relevant EEA citizen”. This is said to be because that definition requires the relationship to have existed on or before ‘the specified date’ of 31st December 2020, whereas the appellant was born after that date (see paragraph 1, above).
Analysis
5. As will have been observed from the issues that were before the First-tier Tribunal, noted at paragraph 3 (above), the question of the timing of the appellant’s birth is one that is raised by the respondent for the first time in the Upper Tribunal. The grounds somewhat disingenuously suggest that this issue was overlooked, “as a result of [the judge] not observing the normal convention of setting out the details and basis of claim [of] each appellant in a joint determination”, when the truth is that it was overlooked as a result of the respondent’s own failure to raise it at the appropriate time. The fact that the respondent now seeks to appeal on the basis of their own failure to raise an issue at the appropriate time is one that is rendered doubly ironic by my conclusion that, even now, they have not addressed the true effect of the admittedly dense and virtually impenetrable language of the provision upon which they seek to rely (see paragraph 8, below). However, before considering the meaning of that provision, it is first necessary to consider whether it is open to the respondent to raise a new issue at all at this late stage.
6. The leading authority is the decision of Lata (FtT: principal controversial issues) [2023] UKUT 00163 (IAC) of which paragraph 34 is particularly apposite -
We consider that there exists a duty upon the parties to identify relevant issues of their own motion. There is no place for hiding a jewel of a submission in the hope that it will purchase favour on appeal. A party that fails to identify an issue before the FtT that it subsequently asserts to have been essential for a judge to consider is unlikely to have a good ground of appeal before UTIAC. None of this is to say that a FtT judge is to entirely lack curiosity in relation to an aspect of a case that the judge requires further assistance with or which the judge considers should be examined as part of the evaluation of the case. Where, as here, a point has not been identified by the parties, and nor is it one which has independently drawn the attention of the judge, it is not an issue which can be appropriately raised for the first time in the context of an appeal to UTIAC.
7. Ms Blackburn drew attention to the fact that the Tribunal in the above passage merely stated that it was “unlikely” that a party who fails to identify an issue before the FtT, subsequently asserted to have been essential to the judge’s consideration, will have a good ground of appeal before UTIAC. As she put it, “unlikely” does not mean “never”. This is true. On the other hand, Ms Blackburn did not advance an argument for why the new issue raised in this appeal ought, exceptionally, to be treated as a good ground of appeal. In the absence of such argument, it seems to me that the fact the appellant has been (and remains) unrepresented, together with the fact that the respondent consented to the appeal being determined in the FtT without a hearing – thereby implicitly accepting that the issues for determination were definitively framed within the documents before the judge – provides ample reason for concluding that the new issue should not be treated as “a good ground of appeal”.
8. However, even if I am wrong in reaching this conclusion, I am far from satisfied that the ground of appeal as it is pleaded in the notice of appeal has merit. It will be recalled that the complaint levelled against the judge concerns his supposed failure to treat the timing of the appellant’s birth (post-dating the specified date of the 31st December 2020) as fatal to the success of his appeal. However, this seems to me to be based upon a misreading of the definition of a “family member of a relevant EEA citizen” within Annex 1 (Definitions) of Appendix EU (Family Permit) to the Immigration Rules. That definition sets out six categories of people who potentially fall within the definition of “family member of a relevant EEA citizen” –
(a) The spouse or civil partner of a relevant EEA citizen;
(b) The specified spouse or civil partner of a Swiss citizen;
(c) The durable partner of a relevant EEA citizen;
(d) The child or dependant parent of a relevant EEA citizen;
(e) The child or dependent parent of the spouse or civil partner of a relevant EEA citizen;
(f) A person who would have been granted indefinite leave to enter under Appendix EU had they made a valid application under that appendix before 1st July 2021.
A person who meets the threshold criteria for one of the above categories will need to meet further requirements, relevant to the category in question, so as to qualify as a “family member of a relevant EEA citizen”. In the case of category (d) - the category raised by the respondent in the grounds of appeal - those further requirements are that the family relationship (i) existed before the specified date, and (ii) the relationship continues to exist at the date of application. However, an exception is made to the first requirement in the case a child, “who was born after that date”, given that it would otherwise be impossible for them to meet it. The effect of this provision, therefore, is that a dependent parent who meets the threshold criterion for this category must establish their dependency upon the relevant EEA citizen both before the specified date and at the date of application, whereas a child who was born after the specified date and who meets the threshold criterion for this category, need only establish the existence of such dependency at the date of application. The reason that the appellant does not on the face of it qualify as a ‘family member of a relevant EEA citizen’ under category (d) thus has nothing to do with the timing of his birth after the specified date. Rather, it is because he does not meet the threshold criterion concerning the required degree of consanguinity. In short, he is the grandchild rather than the child of the relevant EEA citizen. Had he possessed the latter degree of consanguinity, his birth after the specified date would have been irrelevant given the exemption from the first requirement. As it is, the appellant does not possess the required degree of consanguinity to meet the threshold criterion under category (d) and his application accordingly did not fall to be considered within it. However, that is not the way in which the respondent pleads the ‘new issue’ in the ground of appeal to UTIAC. It is moreover telling that they have not sought to appeal the decision concerning the appellant’s older siblings, who are also potentially affected by the lack of an appropriate degree of consanguinity to the relevant EEA citizen within category (d). It is now, however, far too late to indulge the respondent with a yet further bite of this particular cherry.
9. For all the above reasons, both individually and cumulatively, this appeal falls to be dismissed.
Notice of Decision
10. The appeal is dismissed and the decision of the First-tier Tribunal therefore stands

David Kelly Date: 6th July 2026

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber