United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER

Case No: UI-2023-001369 First-tier Tribunal No: EA/11256/2022

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On the 17 February 2025

 

 

Before

 

UPPER TRIBUNAL JUDGE LANE

 

Between

 

Entry Clearance Officer Appellant

 

and

 

Valentina Gutan Respondent

Representation:

 

For the Appellant: Ms Newton, Senior Presenting Officer

For the Respondent: Not present or represented

 

Heard at Manchester Civil Justice Centre on 24 September 2024

 

DECISION AND REASONS

1.       I shall refer to the appellant as the respondent and to the respondent as the appellant as they respectively appeared before the First-tier Tribunal. The appellant, a female citizen of Romania, appealed to the First-tier Tribunal against a decision of the Entry Clearance Officer dated 18 October 2022 refusing her application for an EU Settlement Scheme (EUSS) Family Permit under Appendix EU(Family Permit. The First-tier Tribunal allowed the appeal. The Entry Clearance Officer now appeals to the Upper Tribunal.

2.       There was no attendance by or on behalf of the appellant. I am satisfied (i) that the appellant is resident abroad and (ii) that she has been validly served with the notice of hearing. I consider that it was necessary and fair to proceed with the hearing in the absence of the appellant/the appellant's representatives.

3.       The grounds of appeal are short and I set them out below in full:

It is respectfully submitted, that [the First-tier Tribunal] errs in allowing the appeal on the basis that the appellant has demonstrated that she meets the rules under Appendix EU. They find the appellant to be dependent upon Mr Constantin Tihon (a citizen of Romania), In doing so, they have deprived the Entry Clearance Officer of the opportunity of assessing the application on the basis that the sponsor is now declared as someone completely different to that which the initial decision was taken upon.

It is asserted that in doing so, they have made themselves the primary decision maker, and as such are misdirected in law. The sponsor declared on the application form, was the appellants daughter Doina Gutan Tihon, at no point was Mr Constantin mentioned, therefore the Entry Clearance Officer has been deprived of any opportunity to make a valid decision, as the appellant has essentially by-passed the process by virtue of declaring the wrong person on the application, and as such any checks and enquiries as would normally be actioned have not been completed. It is further submitted, that it is unclear on what basis the appellant is now said to be in the UK, as the application appealed is one requesting Entry Clearance and not an in- country application, as such, given the complete change in circumstances to those presented to the Entry Clearance Officer, and upon which the FTTJ has allowed the appeal, it is unclear on what basis the original decision is said to be unlawful. Permission to appeal on the above grounds is respectfully sought.

4.       At [B7] of the respondent bundle of documents before the First-tier Tribunal, the sponsor of the appellant's application is named as a parent, Doina Gutan-Tihon. The person described by the judge as 'the second sponsor', Mr Constantin Tihon, is not referred to at all in the application form. Notwithstanding that fact, the First-tier Tribunal proceeded to find that Mr Tihon is a 'relevant EEA citizen' [9] and that the appellant is dependent on him [11]. I agree that by doing so the First-tier Tribunal has, in effect, acted as the primary decision maker whilst the respondent has been denied any opportunity to scrutinise the circumstances of Mr Tihon. Ms Shield Newton was also correct in submitting that, in order to obtain the Family Permit for which she had applied, the appellant needed to be physically present in the United Kingdom; it is apparent that she resides abroad.

5.       In the circumstances, the Entry Clearance Officer's appeal is allowed. I remake the decision dismissing the appellant's appeal against the Entry Clearance Officer's decision dated 18 October 2022. Should she be so advised, the appellant can make a fresh application for entry clearance from abroad.

Notice of Decision

The Entry Clearance Officer's appeal is allowed. I have remade the decision. The appellant's appeal against the Entry Clearance Officer's decision dated 18 October 2022 is dismissed.

 

C. N. Lane

 

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

Dated: 12 January 2025