Secretary of State for the Home Department v MD & Ors

Under paragraph FP6.(1)(d) of Appendix EU (Family Permit), “joining” requires the applicant to be united or reunited with the relevant EEA citizen in the United Kingdom within six months of the application. It is insufficient that both are present in the United Kingdom, or that the applicant travels to join the EEA citizen’s spouse or another family member.

The requirement is additional to the EEA citizen’s residence requirement under paragraph FP6.(1)(c). Published guidance cannot expand or replace the wording of the Immigration Rules. A material change in circumstances affecting eligibility may justify proportionate cancellation of leave to enter.

Three Ghanaian siblings obtained EU Settlement Scheme family permits as family members of their father’s Dutch spouse. They entered the United Kingdom, but the spouse said that she had not sponsored their applications, did not support them and was unwilling to do so.

The First-tier Tribunal allowed their appeals against cancellation of their entry clearance, finding that the spouse’s residence in the United Kingdom was sufficient. The Secretary of State appealed. The central issues were the meaning of “joining” in paragraph FP6.(1)(d) of Appendix EU (Family Permit), and whether subsequent circumstances justified cancellation under paragraph A3.4(c).

1. Appeal allowed and First-tier Tribunal decision set aside. The Upper Tribunal remade the decision and dismissed the appeals.
2. Eligibility under paragraph FP6.(1) is assessed at the date of application, whereas proportionality under paragraph A3.4(c) is assessed when cancellation is subsequently considered. Paragraph FP6.(1)(c) concerns the relevant EEA citizen, who must be resident in the United Kingdom or travel there with the applicant. Paragraph FP6.(1)(d) imposes an additional requirement directed to the applicant.
3. Where the EEA citizen is already resident in the United Kingdom, the applicant cannot be accompanying that person to the United Kingdom. The applicant must instead establish that they are “joining” the EEA citizen. In this context, joining means being united or reunited with that person. Reading the provision as satisfied merely because both persons are present in the United Kingdom would make paragraph FP6.(1)(d) redundant.
4. The published guidance was not exhaustive and could not be construed as primary or secondary legislation. It did not remove the separate requirement that both paragraphs FP6.(1)(c) and (d) be satisfied.
5. The First-tier Tribunal had failed to engage adequately with the sponsor’s evidence that she did not support the applications, and with evidence that her relationship with the children’s father had broken down. The children had not lived with the sponsor and were not, by the relevant date, joining her in the United Kingdom. Their arrival to join their father was insufficient.
6. There had therefore been a change in circumstances relevant to eligibility. Given the children’s established care and family relationships in Ghana, and the absence of evidence that they were inadequately cared for, cancellation was proportionate under paragraph A3.4(c).

• Upper Tribunal: Allowed the Secretary of State’s appeal, set aside the First-tier Tribunal decision and remade the decision by dismissing the appeals.
• First-tier Tribunal: Allowed the siblings’ appeals against cancellation of their EU Settlement Scheme family permits. The decision was promulgated on 5 September 2020, as stated in the judgment.