Secretary of State for the Home Department vs MD and Others

This case concerned the interpretation of 'joining' under Appendix EU (Family Permit) in the context of the EU Settlement Scheme, involving children from Ghana seeking to join their father and stepmother in the UK.

TLDR:

• Children from Ghana applied for entry clearance under Appendix EU (Family Permit).
• Their stepmother, an EEA national, was allegedly unaware of the applications.
• The First-tier Tribunal allowed the appeal, but the Upper Tribunal found a material error of law.
• The Upper Tribunal clarified the meaning of 'joining' under Appendix EU (Family Permit).
• The appeal was ultimately dismissed.

The appellants, MD, MSD, and JD, are siblings from Ghana. Their father, Mr. Duah, came to the UK in 2014 and married Lydia Afua Opoku, a Dutch national, in 2017. Ms. Opoku was granted settled status under the EU Settlement Scheme in 2020. The children applied for entry clearance under Appendix EU (Family Permit) in December 2020 and were granted permits in November 2021, arriving in the UK on 2 December 2021.

Upon arrival, the appellants' leave to enter was cancelled as the Immigration Officer found a change in circumstances relevant to their eligibility. The officer noted that Ms. Opoku was not present in the UK at the time of their arrival and had not sponsored their applications.

The First-tier Tribunal allowed the appeal, finding that the children had traveled to the UK to join their father and stepmother. However, the Secretary of State for the Home Department appealed to the Upper Tribunal, arguing that the First-tier Tribunal had erred in law by misinterpreting the requirements of FP6(1)(d) of Appendix EU (Family Permit).

The Upper Tribunal Judge Mandalia found that the term 'joining' in FP6(1)(d) requires the applicant to be united or reunited with the relevant EEA citizen. The judge concluded that the First-tier Tribunal had erred by not considering the lack of consent from Ms. Opoku and her statements during the interview that she had not sponsored the applications and was unwilling to do so.

The Upper Tribunal set aside the First-tier Tribunal's decision and dismissed the appeal, finding that the appellants did not meet the eligibility requirements under Appendix EU (Family Permit) as they were not 'joining' the relevant EEA citizen in the UK.

Legal representatives: Mr. P Lawson, Senior Home Office Presenting Officer for the appellant; Mr. M Marziano, Westkin Associates for the respondents.

Judicial Panel: Upper Tribunal Judge Mandalia

Case Citation Reference: [2024] UKUT 64 (IAC)