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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2025-000102
	First-tier Tribunal No: EA/02901/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

On 26 ^th of March 2025

 

Before

 

UPPER TRIBUNAL JUDGE HIRST

DEPUTY UPPER TRIBUNAL JUDGE LAWRENCE

 

Between

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

and

 

INAM RABANI

(NO ANONYMITY ORDER MADE)

Respondent

Representation :

For the Appellant: no appearance

For the Respondent: J Isherwood

 

Heard at Field House on 13 March 2025

DECISION AND REASONS

 

Introduction

 

1.        The Secretary of State for the Home Department (" SSHD") appeals against a decision by Judge Monson of the First-tier Tribunal, promulgated on 26 November 2024, to allow an appeal by Mr Rabani against a decision by the SSHD, dated 31 July 2023.

 

Anonymity

 

2.        We make no anonymity order because there is no feature of the case that outweighs the principle of open justice.

 

Background

 

3.        Mr Rabani is a national of Pakistan whose date of birth is 23 July 1997. He married an EEA citizen on 11 April 2020 and applied for an EEA family permit under the Immigration (European Economic Area) Regulations 2016 to join the EEA citizen in the United Kingdom. The application was refused on 22 December 2020, for the sole reason that the SSHD was not satisfied that the EEA citizen's claimed employment in the UK was genuine.

 

4.        Mr Rabani appealed against that decision and the appeal was allowed by First-tier Tribunal Judge Sweet in a decision promulgated on 2 November 2021 (EA/00409/2021), who found that the claimed employment was genuine and therefore the EEA citizen was a " qualified person" under Regulation 6 of the EEA Regulations 2016.

 

5.        On 3 January 2023, the Home Office wrote to Mr Rabani's legal representatives to say that although they were satisfied that he would have qualified for an EEA family permit, that route closed after 30 June 2021 and therefore the Home Office could not issue the appellant with an EEA family permit. They would instead endorse Mr Rabani's passport with an EU Settlement Scheme (" EUSS") family permit issued under Appendix EU, which would be valid for 6 months from the date of issue and allow Mr Rabani to travel to and enter the UK. Should he wish to apply under the EUSS once he arrived in the UK, he would be able to rely on the family permit as the " relevant document" required by Appendix EU.

 

6.        Mr Rabani apparently then entered the UK with an EUSS family permit endorsed on his passport, and on 22 March 2023 he applied for leave to remain (" pre-settled status") under Appendix EU to the Immigration Rules as the spouse of a relevant EEA citizen.

 

7.        The 31 July 2023 decision was to refuse the 22 March 2023 application on the basis that Mr Rabani had not provided sufficient evidence to confirm that he was the spouse of a relevant EEA citizen, because he had not provided evidence that the EEA citizen, having been resident in the UK and Islands for a continuous qualifying period which began before the specified date, had been granted indefinite leave to enter or remain under paragraph EU2 of Appendix EU (or under its equivalent in the Islands), which had not lapsed or been cancelled, revoked or invalidated, or had limited leave to enter or remain under paragraph EU3 of Appendix EU (or under its equivalent in the Islands), which had not lapsed or been cancelled, curtailed or invalidated.

 

8.        Mr Rabani appealed against the 31 July 2023 decision under the Immigration (Citizens' Rights Appeals) (EU Exit) Regulations 2020 (" the 2020 Regulations"), opting for a decision without a hearing, to which the SSHD raised no objection. The appeal thus came before Judge Monson to decide on the papers.

 

9.        Judge Monson made a finding that it was neither shown nor suggested that the EEA citizen has been granted settled or pre-settled status under the EUSS.

 

10.    Judge Monson decided however that the 31 July 2023 decision breached a right which Mr Rabani had by virtue of the agreement between the UK and the European Union under Article 50(2) of the Treaty on European Union which sets out the arrangements for the UK's withdrawal from the EU (" the Withdrawal Agreement"). The Judge's reasons were as follows:

 

"17. ... but for the wrongful (in retrospect) refusal of the application for an EEA residence card on 20 December 2020, the appellant would have been able to enter the UK on an EEA family permit and he would have been able to make an application under the EUSS before the cut-off date of June 2021. Moreover, it is implicit in the issue to the appellant of an EUSS family permit in January 2023 that it was accepted by the respondent that he was joining a relevant EEA citizen sponsor."

 

The appeal to the Upper Tribunal

 

11.    The SSHD applied for permission to appeal to the Upper Tribunal on the grounds that we summarise as follows:

 

11.1.             The Judge materially erred in law in deciding it was implicit in the issue to Mr Rabani of an EUSS family permit in January 2023 that it was accepted by the SSHD that he was joining a relevant EEA citizen sponsor;

 

11.2.             The Judge materially erred in law in deciding that Mr Rabani enjoyed rights under the Withdrawal Agreement. Mr Rabani had failed to demonstrate that the EEA citizen fell within Article 10(1)(a) of the Withdrawal Agreement, because there was no evidence that the EEA citizen had continued to reside in the UK after the end of the Transition Period and Mr Rabani therefore had failed to show that he continued to be a family member of a person under Articles 10(1)(a) to (d) of the Withdrawal Agreement.

 

12.    Permission to appeal was granted by First-tier Tribunal Judge Saffer in a decision dated 30 December 2024, on the basis that it was arguable that Judge Monson materially erred for the reasons given in the application.

 

The hearing

 

13.    There was no appearance by or for Mr Rabani at the hearing. It was apparent from the digital file that notice of the hearing had been provided to Mr Rabani on 18 February 2025, to the email address held on the file. The notice of hearing specified that the hearing would commence at 10:00AM. There was no telephone number for Mr Rabani held on the file, but Ms Isherwood informed the clerk of the telephone number for Mr Rabani held on the Home Office file. However, the clerk reported that when she tried the number it was unobtainable. We were satisfied that Mr Rabani had been notified of the hearing and no reason was given for his absence or that reasonable steps had been taken to notify him of the hearing, and we decided that it was in the interests of justice to proceed with the hearing in those circumstances and given the delay that would be occasioned by postponing the hearing. The hearing thus commenced at 11:15AM.

 

14.    Ms Isherwood adopted the grounds of appeal stated in the SSHD's application and responded to questions by the panel.

 

15.    At the end of the hearing we gave our decision with reasons to follow, which are set out below.

 

Error of law

 

16.    We are satisfied that Judge Monson materially erred in law in deciding that the decision breached Mr Rabani's rights under the Withdrawal Agreement, because Mr Rabani failed to provide adequate evidence that the EEA citizen fell within the personal scope provided for in Article 10, Part Two of the Agreement. Therefore, the decision by Judge Monson that Mr Rabani fell within the personal scope of the Agreement was one that was not reasonably open to him.

 

17.    In particular, Mr Rabani had failed to provide any evidence that the EEA citizen had continued to reside in the UK after the end of the transition period as required by Article 10(1)(a) of the Agreement. There was therefore no basis on which Mr Rabani could demonstrate that he fell within the personal scope of the agreement. The judge erred in concluding that the Withdrawal Agreement was engaged on the evidence before him.

 

Remaking the decision

 

18.    We are satisfied that it would be appropriate to proceed to remake the decision on Mr Rabani's appeal to the First-tier Tribunal against the 31 July 2023 decision.

 

19.    Mr Rabani has not established on a balance of probabilities that he meets the requirements for leave to remain under the Immigration Rules. The applicable requirements are in Appendix EU to the Rules, and require that he is the spouse of an EEA citizen and that the EEA citizen, having been resident in the UK and Islands for a continuous qualifying period which began before the specified date, has been granted indefinite leave to enter or remain under paragraph EU2 of Appendix EU (or under its equivalent in the Islands), which has not lapsed or been cancelled, revoked or invalidated, or has limited leave to enter or remain under paragraph EU3 of Appendix EU (or under its equivalent in the Islands), which had not lapsed or been cancelled, curtailed or invalidated. Mr Rabano has not provided any evidence that the EEA citizen has been resident in the UK and Islands for a continuous qualifying period which began before the specified date, or that she has been granted leave to enter or remain under Appendix EU.

 

20.    We are also satisfied that the 31 July 2023 decision does not breach a right which Mr Rabani had by virtue of the Withdrawal Agreement. That is because Mr Rabani has failed to provide any evidence that the EEA citizen has continued to reside in the UK after the end of the transition period as required by Article 10(1)(a) of the Agreement and there is no rational basis for finding that the EEA citizen has continued to reside as such.

 

Notice of Decision

 

21.    The decision of the First-tier Tribunal involved the making of a material error of law and is set aside.

 

22.    We remake the decision on Mr Rabani's appeal against the 31 July 2023 decision to refuse leave to remain under Appendix EU to the Immigration Rules as the spouse of a relevant EEA citizen by dismissing the appeal.

 

 

T Lawrence

Judge Lawrence

Deputy Upper Tribunal Judge

Immigration and Asylum Chamber

 

21 March 2025