[2025] UKUT 00351 (IAC)

Preliminary issues

[5] There is a lengthy procedural history to this case set out in directions I issued at two earlier hearings on 7 June 2024 and 20 August 2024. Given the complexity of the issues and the preparation completed, I reserved the case to myself on each occasion. I will not repeat the background here.

[6] On the morning of this hearing, Mr Holmes requested to address me in the presence of Mr Hardy only. This took place in the hearing room and was video recorded in the usual way. Mr Holmes informed me that the appellant alleges she was raped by her husband on 19 October 2024 and the incident had been reported to police. The appellant had presented as distressed to him that morning. Mr Holmes was instructed that the appellant had made some attempts to disclose the matter to her immigration solicitor in advance but could not speak to the fee earner and did not feel comfortable leaving information with a receptionist. Mr Holmes sought to rely on evidence of the taking of a forensic sample involving the police and of text or WhatsApp messages between the appellant and variously a police officer, a domestic violence worker and her husband. He also applied for the Tribunal to hear part of the appellant’s oral evidence in private and for this issue not to be raised in the presence of T, who was also due to give evidence but is unaware of this incident. I was invited to treat the appellant as a vulnerable witness for reason of the information disclosed and due to the appellant’s mother being terminally ill in Albania. Time was provided for the material to be uploaded and considered by Mr Hardy and the Tribunal, and for further instructions to be taken by the representatives. I invited the parties to consider the effect, if any, of the matters raised on the respondent’s position in her reviews that the appellant could not succeed in her appeal, amongst other reasons, because T could remain to be looked after by the appellant’s husband in the event that she had to leave the UK indefinitely.

[7] When the matter was called on again, Mr Holmes informed me that the new evidence had been uploaded and the parties were ready to proceed. I was told there had been discussion over the issues and necessity for oral evidence. The matter was then reconvened in the appellant’s presence and documents checked. I agreed to admit the new evidence uploaded that morning in the interests of justice given their importance to the issues in the case and there being no objection raised.

Issues in dispute

[8] Following discussion of the issues, Mr Hardy confirmed that the respondent was no longer contending that T, in practice, would be able to remain in the UK if the appellant left for an indefinite period in the sense that the appellant’s husband could care for him. There was also no issue that T was self-sufficient for the relevant period in the terms set out within the rules.

[9] It was agreed that the only live issue for the Tribunal to determine was therefore whether the appellant’s previous grants of leave under Appendix FM meant that she was not someone with a derivative right to reside, having regard to Velaj v SSHD [2022] EWCA Civ 767 and Akinsanya & Anor, R (On the Application Of) v SSHD [2024] EWHC 469 (Admin) because, the respondent argued, she would not have had to leave the UK if unsuccessful with this application. It was agreed that no oral evidence would be needed, and the matter could be dealt with on submissions. I raised with Mr Hardy that I would require submissions on the case of Maisiri (EUSS, Zambrano, ‘Realistic Prospect’ policy) [2024] UKUT 00235, a decision which had followed on from Akinsanya. Mr Hardy asked for time to consider the case and to take instructions, which was granted.

[10] On return to the hearing, Mr Hardy indicated that the respondent conceded that the appellant does in fact meet the relevant rules under Appendix EU. I asked whether the respondent therefore intended to withdraw her decision, and he replied that it would be quicker for me to determine the matter than for a withdrawal and new decision to be taken.

FINDINGS

[11] As there are no disputed issues for the Tribunal to determine, it is not necessary for me to make findings, other than to state that the appeal succeeds with reference to Appendix EU.

NOTICE OF DECISION

The appeal is allowed.