[2024] UKUT 00064 (IAC)

The appeal before the FtT was against the respondent’s decision dated 29 December 2021 to cancel/revoke the appellants’ EUSS Family Permits, and refuse leave to enter the UK under Appendix EU (Family Permit). The issue at the heart of the appeal was whether it is proportionate to cancel that leave because since the entry clearance was granted, there has been a change in circumstances that is, or would have been, relevant to the appellants’ eligibility for that entry clearance such that their leave to enter ought to be cancelled.

The issue is dealt with in paragraph [24] of the judge’s decision. The reasons given are brief. I accept the reasons do not need to be lengthy, but reading the decision as a whole I am satisfied that the judge erred when she concluded at [24], relying upon the published guidance she had been referred to, that paragraphs FP6.(1)(c) and (d) “only requires the EEA citizen to be resident in the UK before the Appellants arrival and not her consent”. That, for the reasons I have set out in my analysis of the proper construction of paragraph FP6.(1)(d), is wrong in law.

To remain eligible for entry clearance, it was for the appellants to establish that they are ‘joining’ the relevant EEA citizen in the UK. That is, they were being united or reunited with the relevant EEA citizen. I add that paragraph FP6.1(d) is not concerned with the applicant travelling to the UK to join the relevant EEA citizen or their spouse(my emphasis). The words used in the provision expressly require that the applicant is accompanying the relevant EEA citizen or joining them. (my emphasis). A ‘relevant EEA citizen’, is defined in Annex 1 and the focus is upon the EEA citizen. Neither party suggests the definition of a ‘relevant EEA citizen’ extends to include the spouse or civil partner of an EEA citizen. It was not therefore sufficient that the appellants had come to the UK to join their father.

Although the judge referred to the interview of Ms Opoku conducted by an Immigration Officer on 17 December 2021, the judge did not engage with the record of the claim made by her during that interview that that she had not sponsored the appellants’ applications for a EUSS Family Permit, that their father had done so without her knowledge or consent, and her claim that she was unwilling to sponsor the applications. The appeal was heard in July 2022 and in her decision the judge accepted the evidence of Mr Duah that Ms Opoku had provided the documents that were required to be submitted with the appellants applications to join them in the UK.

The judge failed to engage with the information provided by Ms Opoku when she was interviewed and it was obvious from the evidence of Mr Duah himself that he and his partner had been separated for several months by the time the appeal was heard. The judge made no findings as to whether the appellants had in fact ever met Ms Opoku. Although the judge said she found the appellants had arrived on 2 December 2021 “to join [Ms Opoku] and their father”, by the 29^th December 2021 and certainly by the time the appeal was heard, the relationship between Ms Okolu and Mr Duah had broken down and Ms Opoku did not support the appellants’ application and they were not joining her in the UK. In my judgement, the judge’s assessment of the evidence was infected by the judge’s misinterpretation of the requirements of paragraph FP6.(1)(d), and her understanding that the “consent” of Ms Opoku, as the judge put it, was not required.

Standing back and reading the decision of the FtT as a whole, I am satisfied that the decision of the judge is infected by material errors of law and must be set aside.