Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-002535
First-tier Tribunal No: EA/01730/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

4th September 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE LAWRENCE

Between

HABBI BARRY
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: self-representing
For the Respondent: S Keerthy, Senior Home Office Presenting Officer

Heard at Field House on 28 August 2026

DECISION AND REASONS

Introduction

1. The Appellant appeals against a decision by Judge Sweet of the First-tier Tribunal (“the FtT Judge”), dated 12 March 2026, to dismiss an appeal against a decision by the Secretary of State for the Home Department (“SSHD”), dated 19 July 2021, to refuse an application for leave to remain in the United Kingdom (“UK”) under Appendix EU to the Immigration Rules (“Appendix EU”).

Anonymity

2. I make no order for anonymity because there is no feature of the case that requires such an order to be made.

Background

3. The Appellant is a national of Gambia who is presently 36 years’ old. Her application under Appendix EU was made on 24 March 2021 on the basis that she was a family member of a relevant EEA citizen, namely her father, Mr Bubakarr Pele Barry, who is a citizen of Sweden.

4. In the 19 July 2021 decision, the Respondent accepted that Mr Barry was the Appellant’s father, and that he was a relevant EEA citizen.

5. However, the Respondent asserted that the Appellant had not provided sufficient evidence to demonstrate that she was dependent on the relevant EEA citizen or on their spouse or civil partner, as required by rule EU11 of Appendix EU because the Appellant was a child over the age of 21 of a relevant EEA citizen. The Respondent noted that for such purposes, “dependent” meant that: “having regard to your financial and social conditions, or health, you cannot meet your essential living needs (in whole or in part) without the financial or other material support of the relevant EEA citizen or of their spouse or civil partner; and . the relevant EEA citizen or their spouse or civil partner is providing you with such support.”

6. The Respondent also noted that the Appellant had been issued an EEA family permit in December 2014, and a residence card in October 2015, based on her relationship to Mr Barry as a dependent over-21 year old child. She had supplied numerous documents showing her residency in the UK, however the most recent document showing that she resided at the same address as her father was an NHS letter dated in February 2018. There were also earlier documents dated September 2017, from Thames Water, and December 2017, from the NHS, showing she was already residing at her current address. The Respondent also asserted that they could not accept a handwritten note from Mr Barry stating that they supported the Appellant financially, because that needed to be supported by documentary evidence, and the Respondent asserted that there had been no evidence supplied showing ongoing financial support from Mr Barry.

7. The Appellant applied for an administrative review of the 19 July 2021 decision, which was unsuccessful, as communicated in a letter by the Respondent dated 24 April 2023 on the basis that the reasons given in the 19 July 2021 decision were correct and continued to apply.

8. The Appellant appealed against the 19 July 2021 decision and the appeal was heard by the FtT Judge on 6 March 2026. The FtT Judge records in their 12 March 2026 decision that the Appellant and Mr Barry both attended the hearing, which was heard remotely. It recorded that Mr Barry had been employed by Asda and was at the time of the hearing employed by ILG, that he stated that he had been giving cash payments to the Appellant on an irregular basis, as confirmed in his handwritten letter of 15 June 2021 and undated typed witness statement, however the FtT Judge considered that it was clear from bank statements that those payments were of a “spasmodic basis”. Bank statements also showed numerous payments made by the Appellant to Mr Barry, of varying amounts. There was evidence that the Appellant had been working for Matalan and Nandos and latterly Shaw Healthcare and “may therefore have been, and still be financially independent.” The Appellant stated in evidence that she has a British partner, Abdul Ceesay (a self-employed Uber driver, who also received Universal Credit), whom she married on 12 March 2017, with three children (aged 8. 5 and 1), and was expecting a fourth child. The FtT Judge was not persuaded that there was evidence of financial dependency and therefore decided that the appeal should be dismissed.

The appeal to the Upper Tribunal

9. Permission to appeal to the UT was granted by FtT Judge Robinson in a decision dated 15 May 2026, for the following reasons:

“2. Ground 1 states in summary that the Judge erred in law by applying an overly narrow and purely financial test of dependency, contrary to Reyes v SSHD [2013] UKUT 314 (IAC).

3. It is arguable that the Judge has erred in failing to properly apply the test of dependency under Appendix EU to the Immigration Rules with regard to the relevant caselaw, in particular it is arguable that the Judge did not properly consider whether the financial support provided to the Appellant by the Sponsor was necessary to enable her to meet her essential living needs.

4. Accordingly permission to appeal is granted on ground 1. I am less persuaded by the other grounds 2-6.”

10. Ms Keerthy agreed that Judge Robinson did not expressly refuse permission on the other grounds raised by the Appellant in te application for permission to appeal, additional to the Ground 1 on which permission was expressly granted, and that Judge Robinson had not given any reasons for refusing permission on the other grounds and Ms Keerthy conceded that any ambiguity as to whether Judge Robinson intended to grant or to refuse permission on the other grounds ought to be settled in the Appellant’s favour and therefore the UT ought to decide the appeal on all the grounds advanced at permission stage. I agreed, noted that the Respondent had in any event submitted a response, dated 2 June 2026, under Rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008 that addresses all of the grounds.

The hearing

11. I heard oral submissions by Ms Keerthy and by the Appellant, which I refer to in the sections below insofar as is necessary to explain my decision.

12. I reserved my decision to follow in writing.

Reasons

13. The Appellant’s Ground 1 is as follows:

“Ground 1: Material Misapplication of the Legal Test for Dependency

1. The FtT erred in law by applying an overly narrow, purely financial test of dependency, contrary to Reyes v SSHD [2013] UKUT 314 (IAC).

2. Dependency under Appendix EU is a simple question of fact (Jia). It does not require that support be regular, exclusive, or free of any reciprocal gestures. The FtT’s focus on the “spasmodic” and “irregular” nature of the father’s cash payments is irrelevant in law. The correct question is whether, on the balance of probabilities, the Appellant cannot meet her essential living needs (accommodation, food, utilities, medication) without her father’s support.

3. In Reyes, the Upper Tribunal held that dependency requires a holistic examination of financial, physical, and social conditions. The FtT failed to conduct such an examination. In particular:
· The judge did not assess the Appellant’s essential living costs.
· The judge did not assess whether her modest earnings (see below) were sufficient to meet those costs.
· The judge ignored the father’s detailed budget (Pages 16-17 of the original bundle), which showed he allocates part of his £17,000-£18,000 annual income to his daughter’s daily expenses.

4. The judge also failed to recognise that provision of accommodation alone can constitute dependency. The Appellant lived with her father for many years; the judge noted she “may have been living with her father until about 2018” but did not consider whether she continued to live with him thereafter or whether her father provided housing even if at a different address (e.g., paying her rent). This is a material omission.”

14. The Respondent’s Rule 24 response to this ground is as follows:

“ 4. This ground asserts that the FtTJ acted contrary to Reyes. The relevance of Reyes is doubtful given that Appendix EUSS contains its own definition of dependency (under ‘child’ at ‘Annex 1 – Definitions’) which was set out by the FtTJ at [2]. At any rate, R would disagree that the FtTJ did anything contrary to the precis of the law given in Reyes at [19].

5. Without A having set out in full her household income and expenditure, the FtTJ could not rationally have found she was dependent on S, no matter what portion of S’ expenditure he allocated to A. §4 of this ground criticses the FtTJ for not considered whether S paid A’s rent. Had he done so, he would have had to deal with the inconsistency between S stating in his witness statement that he and A live together (§3 [AB/16]), and their respective payslips which give different addresses: [AB/24] vs [AB/60].

6. A further point which would have damaged S’ credibility is that at §2 of his WS [AB16] he describes himself as a ‘citizen of the Netherlands’, despite having provided only a Swedish passport at [AB/22].”

15. In Reyes (EEA Regs: dependency) [2013] UKUT 314 (IAC), the UT reviewed the authorities as to the meaning of dependency in Article 2 of the Directive 2004/EC/38, “the Citizenship Directive”, from which the UT gleaned the following four key thing:

“19. … First, the test of dependency is a purely factual test. Second, the [Court of Justice of the European Union in Jia v Migrationsverket C-1/05 [2007] QB 545] envisages that questions of dependency must not be reduced to a bare calculation of financial dependency but should be construed broadly to involve a holistic examination of a number of factors, including financial, physical and social conditions, so as to establish whether there is dependence that is genuine. The essential focus has to be on the nature of the relationship concerned and on whether it is one characterised by a situation of dependence based on an examination of all the factual circumstances, bearing in mind the underlying objective of maintaining the unity of the family. It seems to us that the need for a wide-ranging fact-specific approach is indeed enjoined by the Court of Appeal in SM (India): see in particular Sullivan LJ’s observations at [27]-[28]. Third, it is clear from the wording of both Article 2.2 and regulation 7(1) that the test is one of present, not past dependency. Both provisions employ the present tense (Article 2.2(b) and (c) refer to family members who “are dependants” or who are “dependent”; regulation 7(c) refers to “dependent direct relatives…”). Fourth (and this may have relevance to what is understood by present dependency), interpretation of the meaning of the term must be such as not to deprive that provision of its effectiveness.”

16. The applicable definition of “dependent” in Appendix EU to the Immigration Rules is as follows:

“‘dependent’ means here that:
(a) having regard to their financial and social conditions, or health, the applicant cannot, or (as the case may be) for the relevant period could not, meet their essential living needs (in whole or in part) without the financial or other material support of the relevant EEA citizen (or, as the case may be, of the qualifying British citizen or of the relevant sponsor) or of their spouse or civil partner; and
(b) such support is, or (as the case may be) was, being provided to the applicant by the relevant EEA citizen (or, as the case may be, by the qualifying British citizen or by the relevant sponsor) or by their spouse or civil partner; and
(c) there is no need to determine the reasons for that dependence or for the recourse to that support”

17. The Respondent has not identified any difference between the meaning of dependency that was explained by the UT in Reyes and the definition in Appendix EU, but (as stated above) asserts that the FtT Judge applied the definition as explained in Reyes in any event.

18. There is no reason to consider that the meaning of dependency in Appendix EU for the purpose in question is not the same as the meaning of dependency in Article 2 of the Directive 2004/EC/38 that was explained by the UT in Reyes, and there is good reason to consider that the meaning is the same, including that the essential focus must be on the nature of the relationship concerned and on whether it is one characterised by a situation of dependence based on an examination of all the factual circumstances, bearing in mind the underlying objective of maintaining the unity of the family, as explained by the Court of Justice of the European Union in Jia.

19. I note that the FtT Judge referred at paragraph 2 of the decision to the definition of “dependency” as whether, on the balance of probabilities, the Appellant could not meet her essential living needs without her father’s support. That self-direction is not inconsistent with the definitions of dependency explained by the UT in Reyes and in Appendix EU, but it is not complete because it omits the need to have regard to financial and social conditions, or health, that it suffices if the subject’s essential living needs cannot otherwise be met in part, and that the required support may be financial or other material support. It is however necessary to consider whether the substance of the FtT Judge’s assessment encompassed the complete meaning of dependency that I have set out above, including the examination of all the factual circumstances, bearing in mind the underlying objective of maintaining the unity of the family.

20. I am persuaded that the FtT Judge’s assessment did not encompass the complete meaning of dependency, because the FtT Judge did not make a clear finding on whether or not the Appellant was residing with her father at the time of the hearing, as the father had claimed in his witness statement. That situation was, I consider, an essential element of the factual circumstances, bearing in mind the underlying objective of maintaining the unity of the family. Ms Keerthy accepted during the hearing that the FtT Judge had made no clear finding on the matter. However, Ms Keerthy submitted that, while provision of accommodation could be relevant to the extent of support provided by one person to another, such provision alone was not capable of constituting dependency. I am not persuaded that Ms Keerthy is correct, because the complete meaning of dependency includes that that can be established where the dependent person’s essential living needs are met in part only by the person on whom they are dependent, and such needs plainly include accommodation.

21. I am further reinforced in my view that the FtT Judge’s assessment did not encompass the complete meaning of dependency by the FtT Judge’s reasons for finding that dependency was not established being that they were not persuaded that there was evidence of financial dependency (see paragraph 11 of the decision - my emphasis), indicating that the FtT Judge did not have regard to the possibility that the required support could be material support other than financial support.

22. The Respondent has submitted in the Rule 24 response that, without the Appellant having set out in full her household income and expenditure, the FtT Judge could not rationally have found her to have been dependent on her father. It is correct that the Appellant’s income and expenditure was not clearly stated in the documentary materials at least, including the witness statements (the FtT Judge refers to oral evidence having been heard at the hearing but there is no record as to whether that evidence included any additional statements regarding the Appellant’s income or expenditure). However, the Respondent’s assertion ignores that the assessment of dependency required the examination of all the factual circumstances, bearing in mind the underlying objective of maintaining the unity of the family, and the consideration of the possibility that the required support could be material support other than financial support, which could include the provision of accommodation alone. It may be that if they had considered that matter, the FtT Judge would have needed to address the alleged inconsistencies referred to in the Respondent’s Rule 24 response. However, I am not persuaded that any such matters could only rationally have led to a finding that the Appellant was not residing with her father, nor that the only rational conclusion on the evidence would have been that the Appellant was not dependent on her father.

23. I am therefore persuaded that the FtT Judge materially erred in law in their assessment of the determinative question of whether the Appellant was dependent on her father.

24. I am not persuaded by the Appellant’s Ground 2, which asserts that the FtT Judge ought to have made their own calculations of the Appellant’s earnings and whether those covered her rent, food, utilities, and other essentials. It was for the Appellant to put her case to the FtT Judge, rather than the FtT Judge to conduct an inquisitorial approach of the nature described in this ground.

25. I am not persuaded by Ground 3, which asserts that the FtT Judge’s treatment of transfers of money from the Appellant to her father was irrational. The ground includes an assertion that the FtT Judge failed to engage with the Appellant’s explanation of payments made by her to her father, which she claimed were for him to make purchases on her behalf. The FtT Judge did have regard to that explanation, see paragraph 8 of the decision, and there is no irrationality in the FtT Judge’s consideration that the fact that there were numerous other such payments and evidence that the Appellant had been working was indicative that the Appellant might have been financially independent.

26. I am not persuaded by Ground 4, which asserts that the FtT Judge had regard to an irrelevant consideration, namely the fact that the Appellant had a British spouse. The spouse is referred to in the FtT Judge’s decision at paragraphs 10 and 12, where the FtT Judge speculates as to whether the Appellant should make a claim or fresh application for settled or pre-settled status on the basis of that relationship. Ms Keerthy accepted during the hearing that such speculation could only properly have been entirely superfluous to the FtT Judge’s consideration of whether the Appellant was dependent on her father but Ms Keerthy submitted that that speculation was not part of the FtT Judge’s reasons regarding dependency. I am persuaded that Ms Keerthy is correct about all of that, although I do consider that the inclusion of such superfluous speculation is not to be commended.

27. It may be correct, but is unnecessary to decide, whether the errors of law I have identified would render the decision unjustified or disproportionate under Article 18(1)(r) of the Withdrawal Agreement. That argument was not developed by the Appellant, whose participation during the hearing suggested that she did not understand that the present proceedings are to establish whether or not the FtT Judge made a material error of law, rather than an opportunity for her to put her factual case before a different tribunal.

28. I am not persuaded by the assertion in Ground 6 that there is any error of law of inconsistency with earlier decisions by the Respondent, which related to the Appellant’s circumstances at the relevant times, some years ago, and I am not persuade that any legitimate expectation could have arisen from those decisions. In the Rule 24 response, the Respondent noted that they were unable to find the authority cited in ground 6, “CG v SSHD [2021] EWCA Civ 641” and stated that that unless the Appellant could give an amended citation leading to a case which is authority for the claimed proposition, the Respondent would presume it was the product of an “AI hallucination”. I could not identify any such case either, and the Appellant appeared unable to give any explanation for the citation.

Disposal

29. The error of law in the FtT’s decision is such that none of the findings made by the FtT can be preserved, and therefore I consider it is appropriate that the appeal to the FtT be remitted to the FtT for hearing afresh I am satisfied that the nature and extent of judicial fact finding that is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective, it is appropriate to remit the case to the FtT.

Notice of Decision

The decision of the FtT involved the making of a material error on a point of law.

The decision of the FtT is set aside with no findings preserved.

The remaking of the decision in the appeal is remitted to the FtT, to be remade afresh by any judge other than Judge Sweet.

T Lawrence
Judge Lawrence
Deputy Upper Tribunal Judge
Immigration and Asylum Chamber
DATED: 3 September 2026