[2024] UKUT 00064 (IAC)

The respondent claims Judge Phull erred in finding, at [24], that the respondent’s guidance dated 6 April 2022 concerning FP6(1)(c) and FP6(1)(d) of Appendix EU (Family Permit), only requires the EEA citizen to be resident in the UK before the appellants arrival, and does not require her consent. The respondent claims the guidance clearly identifies that “the applicant will be accompanying the relevant EEA citizen (or, as the case may be, the qualifying British citizen) to the UK (or joining them in the UK) within 6 months of the date of application. (my emphasis)”

The respondent claims the decision of Judge Phull is vitiated by a material error of law. In particular, the evidence of the appellant’s father was that he is no longer in a relationship with Ms Opoku and they no longer live together. The respondent claims there had clearly been a change in circumstances, and Judge Phull erred in concluding the appellants will be “joining” their step mother when she did not know of or support the applications, does not wish to sponsor the appellants, and she has neither resided with them in the past nor will she do so in the future.

Permission to appeal was granted by Upper Tribunal Judge Lane on 12 January 2023. He said:

“It is arguable that the use of the word ‘joining’ in paragraph FP(6)(1)(d) of Appendix EU (Family Permit) should properly be construed to require the applicant to reside together with the sponsor in the United Kingdom and that the paragraph is not satisfied simply by the applicant and sponsor both being in the United Kingdom at the same time but otherwise not associating.”

The appellants have filed a Rule 24 response. It is accepted by the appellants that they had not lived with, or had any significant relationship with the EU Citizen sponsor, Ms Opoku. Rather, they are the biological children of the spouse of the EU Citizen sponsor. The appellants submit Judge Phull was right to say at paragraph [24] of her decision that that Home Office guidance, dated 6 April 2022, is to be read as meaning that the EEA Citizen’s presence in the UK on the date of arrival is required, but nothing more. There is, the appellants claim, nothing in that guidance which interprets FP6(1)(c) or (d) as requiring cohabitation or further association.

Before me, Mr Lawson submits that here, the appellants must establish that, at the date of application, the relevant EEA citizen (Ms Opoku) is in the UK (FP6(1)(c)) and the appellants would be joining her in the UK (FP6(1)(d)). He accepts the word ‘joining’ is not defined in Appendix EU (Family Permit) and submits the ordinary ‘Oxford Dictionary’ definition of that word as a verb is “to put (things) together, so that they become physically united or continuous”. It involves, Mr Lawson submits, ‘two things either connecting or being united’. Here, Mr Lawson submits Ms Opoku had said when she was interviewed on 17 December 2021 that her husband (Mr Duah) had made the applications for entry clearance without speaking to her, and, that she had not seen the appellants. She claimed she had not ‘sponsored’ the appellants and did not want to do so.

In reply, Mr Marziano adopted the appellants’ skeleton argument that was prepared for the hearing before the FtT. He submits the word “joining” referred to in FP6.(1)(d) of Appendix EU (Family Permit) is not defined, and the ‘continued consent of Ms Opoku’ is not required. He submits the respondent’s guidance; EU Settlement Scheme Family Permit and Travel Permit, published on 6 April 2022 states:

“Under rule FP6(1)(c) and (d) or, as the case may be, rule FP6(2)(c) and (d) of Appendix EU (Family Permit), in an application for an EUSS family permit (and where rule FP8A does not apply), you must be satisfied, including in light of any relevant information or evidence provided by the applicant, at the date of application both that:

• the relevant EEA citizen (or, as the case may be, the qualifying British citizen) is resident in the UK or will be travelling to the UK with the applicant within 6 months of the date of application

• the applicant will be accompanying the relevant EEA citizen (or, as the case may be, the qualifying British citizen) to the UK (or joining them in the UK) within 6 months of the date of application

This means that the relevant EEA citizen (or, as the case may be, the qualifying British citizen) must either:

• be travelling with the applicant, at the same time, from the same country

• be resident in the UK before the applicant arrives (emphasis added)”

Mr Marziano submits that all that is required therefore, is that the relevant EEA citizen is in the UK at the date of the application, unless they are overseas, in which case there must be evidence that they will be accompanying the applicant to the UK within six months of the date of the application. Here, the respondent does not deny that Ms Opoku was in the UK at the date of the application or the date of the decision to grant the appellants an EU Settlement Scheme family permit.

Mr Marziano submits that whilst it is unfortunate that Ms Opoku made negative comments about the appellants and Mr Duah in her interview, and appeared to withdraw her consent to the appellants living in the UK with Mr Duah, that is not to say that she was not in the UK or not resident in the UK at the material time. She had attended an interview in the UK, which of itself, is proof of her presence in the UK.

Mr Marziano submits the definition of ‘joining’ in this context is much wider than that contended for by the respondent. ‘Joining’ includes the place, or junction, at which two parts are joined. Here, the ‘junction’ or conduit is the United Kingdom. The appellants were ‘joining’ in the sense that they were coming to the UK. Appendix EU (Family Permit) does not require there to be a subsisting relationship between the appellants and the relevant EEA citizen. Ms Opoku remains married to the appellant’s father and the appellants continue to be a ‘family member of a relevant EEA citizen’ as defined in Appendix 1. Where the applicant is the child of the spouse or civil partner of a relevant EEA citizen that relationship is required to have existed before the specified date (save as set out), and all the family relationships must continue to exist at the date of application. Here, Ms Opoku remained married to the appellant’s father and the relationship between the appellants and their father plainly continued to exist.

In the circumstances, Mr Marziano submits it was open to the judge to allow the appeal for the reasons she gave.