United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI- 2024-001424
	First-tier Tribunal No: EU/55107/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

On 20 ^th of March 2025

 

Before

 

UPPER TRIBUNAL JUDGE RASTOGI

DEPUTY UPPER TRIBUNAL JUDGE WALSH

 

Between

 

GLADYS NGOZIKA EBIEM

(NO ANONYMITY ORDER MADE)

Appellant

and

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Mr. Humphrey-Ndubuisi of Drummond Miller LLP

For the Respondent: Ms. Ahmed, Senior Home Office Presenting Officer

 

Heard at Field House on 24 February 2025

 

DECISION AND REASONS

 

1.     The appellant appeals with permission the decision of First-Tier Tribunal Judge Hands ("the judge") dated 5 ^th February 2024. By that decision, the judge dismissed the appellant's appeal against the respondent's refusal of the appellant's application for permission to remain in the United Kingdom pursuant to the EU Settlement Scheme ("EUSS"). The decision of the Secretary of State was made on 14 ^th August 2023.

2.     The basis of the appellant's application for pre-settled status under paragraph EU14A of Appendix EU to the Immigration Rules was as the dependant parent of a spouse of an EEA national with settled status. The appellant's sponsor was her daughter who was married to an EEA national. The date of application was 5 May 2023.

3.       There are 5 grounds of appeal, however, the appellant's central challenge to the decision is set out in the 1 ^st Ground: that that the judge applied the wrong test for eligibility under EU14A by proceeding on the basis that dependency must be in existence before the specified date, i.e. 31 ^st December 2020 and continued to the date of application.

 

4.       Prior to the commencement of the hearing, Ms. Ahmed, on behalf of the respondent, conceded that the judge had made a material error of law in applying the wrong test for eligibility as per Ground 1 of the appellant's grounds.

 

5.       Mr. Humphrey-Ndubuisi agreed that the respondent's concession on Ground 1 was sufficient to dispose of the appeal. He argued that the appeal should be allowed outright on the basis that the sponsor's provision of accommodation to the appellant meets the test for dependency. In the alternative, he submitted the matter should be remitted to the First-tier Tribunal for a full-hearing with no preserved findings.

 

6.       Ms. Ahmed did not make any concessions with respect to the sufficiency of evidence of dependency, including the provision of accommodation, and she maintained the respondent's position as set out in the refusal letter and review. Ms. Ahmed's position was that the matter should be remitted to the First-tier with no preserved findings given the fundamental nature of the error of law.

Error of Law

7.       At [5] and [8] of the Decision, the judge correctly identifies that the appellant's application was based on her claim that she was entitled to a grant of pre-settled status under paragraph EU14A. It is also clear from [5] and [12] for example that the appellant's application was founded on the fact that she is the mother of the spouse of a 'relevant sponsor' rather than of a 'relevant EEA citizen'. However, at [13], [14], and [17] the judge incorrectly states the test for eligibility under EU14A, asserting that the appellant needed to demonstrate that the dependency existed at the specified date and continued to the date of application. In fact, as will be seen, in relation to joining family members of relevant sponsors, for applications made after 1 July 2021, an applicant need only establish that the dependency existed at the date of application.

8.       The eligibility criteria under EU14A, correctly set out in the appellant's grounds, are as follows:

Persons eligible for limited leave to enter or remain as a joining family member of a relevant sponsor

 

EU14A. 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:

 

(a)     The applicant is:
(i) a joining family member of a relevant sponsor; or
(ii) a family member who has retained the right of residence by virtue of a relationship with a relevant sponsor; and
(b) The applicant is:
(i) not eligible for indefinite leave to enter under paragraph EU11A of this Appendix, where the application is made outside the UK; or
(ii) not eligible for indefinite leave to remain under paragraph EU11A of this Appendix, where the application is made within the UK, solely because they have completed a continuous qualifying period of less than five years which began after the specified date; and
(c) Where the applicant is a joining family member of a relevant sponsor, there has been no supervening event in respect of the relevant sponsor

 

9.       Again, as correctly set out in the appellant's grounds, the relevant period for demonstrating dependency is found in Annex 1 in the definition of 'dependent parent' as follows:

 

(a)     the direct relative in the ascending line of a relevant EEA citizen (or, as the case may be, of a qualifying British citizen or of a relevant sponsor) or of their spouse or civil partner; and
(b) (unless sub-paragraph (c) immediately below applies) dependent on (as the case may be):
(i) the relevant EEA citizen (or on their spouse or civil partner) at the date of application or, where the date of application is after the specified date, at the specified date, and (unless the relevant EEA citizen is under the age of 18 years at the date of application or, where the date of application is after the specified date, the relevant EEA citizen was under the age of 18 years at the specified date) that dependency is assumed; or
(ii) on the qualifying British citizen (or on their spouse or civil partner) at the date of application or, where the date of application is after the specified date, at the specified date, and (unless the qualifying British citizen is under the age of 18 years at the date of application or, where the date of application is after the specified date, the qualifying British citizen was under the age of 18 years at the specified date) that dependency is assumed; or
(iii) on the relevant sponsor (or on their spouse or civil partner) at the date of application and (unless the relevant sponsor is under the age of 18 years) that dependency is assumed where the date of application is before 1 July 2021;

 

10.   We agree therefore that the concession of the Secretary of State was properly made as the judge made a material misdirection of law by applying the wrong eligibility criteria. In light of the concession made by the respondent and on the appellant accepting the sufficiency of the concession on Ground 1, it was not necessary for us to determine the remaining grounds.

Disposal

11.   The error of the law is such that the decision of the First-tier Tribunal is set aside pursuant to section 12 of the Tribunals, Courts and Enforcement Act 2007.

 

12.   We considered whether any findings of fact should be preserved, bearing in mind the principles set out in AB (preserved FtT findings; Wisniewski principles) Iraq [2020] UKUT 268 (IAC) . However, we determined that the nature of the error of law was so significant that it infected the judge's approach to the evidence and therefore preserve no findings.

 

13.   Applying the principles set out in the Practice Direction, according to the guidance given in Begum (Remaking or remittal) Bangladesh [2023] UKUT 46 (IAC), as we have not preserved any findings of fact, we are satisfied remittal to the First-tier Tribunal is the appropriate disposal.

 

Notice of Decision

14.   The decision of the First-tier Tribunal contains a material error of law. The case is remitted to the First-tier with no findings preserved.

 

 

Martha Walsh

 

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

14 ^th March 2025