Have Rexhaj v Secretary of State for the Home Department

Where a person receives entry clearance as a dependent parent under Appendix EU (Family Permit) and is later granted leave to enter at the border in that capacity, the operative basis for the leave to enter is Appendix EU. The person has therefore previously been granted leave as a dependent parent “under this Appendix” for the purposes of the dependent-parent definition in Annex 1 to Appendix EU. Dependency is accordingly assumed and need not be established again. Appendix EU (Family Permit) concerns entry clearance and operates alongside Appendix EU, which makes provision for leave to enter and remain. A contrary construction would make the relevant dependency exception largely ineffective.

The appellant, an Albanian national, entered the United Kingdom after being granted an EU Settlement Scheme Family Permit as the dependent parent of relevant sponsors. She subsequently applied in-country for limited leave to remain as a dependent parent under Appendix EU. The Secretary of State refused the application because dependency had not been demonstrated.

The First-tier Tribunal dismissed the appeal, holding that the appellant’s leave to enter arose under Appendix EU (Family Permit), not Appendix EU, and also making adverse factual findings about dependency. The Upper Tribunal considered whether dependency was assumed under the dependent-parent definition and whether the factual findings could stand.

1. Appeal allowed. The First-tier Tribunal decision involved an error of law and was set aside. No findings of fact were preserved.
2. The Immigration Rules should be interpreted sensibly according to the natural and ordinary meaning of their words, recognising their character as statements of administrative policy. The Tribunal applied the approach in Mahad v Entry Clearance Officer [2009] UKSC 16; [2010] Imm AR 203.
3. Appendix EU (Family Permit) focuses on granting entry clearance. Paragraph FP2 states that it operates in connection with the acquisition of leave to enter or remain by virtue of Appendix EU. Appendix EU itself makes detailed provision for leave to enter and remain, including paragraph EU14A for dependent parents.
4. Accordingly, a person granted entry clearance as a dependent parent under Appendix EU (Family Permit), and subsequently granted limited leave to enter at the border in that capacity, is granted leave to enter under Appendix EU. The person therefore falls within paragraph (c)(i) of the dependent-parent definition in Annex 1 to Appendix EU and does not have to prove dependency.
5. The First-tier Tribunal wrongly treated dependency as a live issue. Its factual findings concerning alleged dishonesty were set aside. The Upper Tribunal expressed grave doubts about findings of dishonesty made without prior notice of that issue and without oral evidence from the witnesses, but did not determine the procedural-fairness ground.
6. The Upper Tribunal remade the decision under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007. The appellant met paragraph EU14A of Appendix EU and the appeal was allowed under regulation 8(3)(b) of the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020. A whole fee award was made.

• Upper Tribunal (Immigration and Asylum Chamber): the First-tier Tribunal decision was set aside for error of law, with no findings of fact preserved. The decision was remade and the appeal allowed under regulation 8(3)(b) of the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020.
• First-tier Tribunal: Judge C. H. Bennett dismissed the appellant’s appeal against the Secretary of State’s refusal of her application for leave to remain as a dependent parent.