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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-002485
	First-tier Tribunal No: EA/03686/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 14 February 2025

 

Before

 

UPPER TRIBUNAL JUDGE PINDER

 

Between

 

EMILIA FERIOVA

(ANONYMITY ORDER NOT MADE)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Mr B Bedford, Counsel instructed by Central England Law Centre.

For the Respondent: Ms Simbi, Senior Presenting Officer.

 

Heard at Birmingham Civil Justice Centre on 10 January 2025

 

DECISION AND REASONS

1.              This is the re-making of the decision in the Appellant's appeal, following the setting aside of the decision of First-tier Tribunal Judge Cartin, who had dismissed the Appellant's EU Settlement Scheme ('EUSS') appeal. My earlier decision on the errors of law and the setting aside of Judge Cartin's decision is appended to this decision as a separate annex.

Background

2.              The Appellant is a citizen of Slovakia, and is aged 26 years old. She entered the UK on 25 ^th February 2022 and applied on 8 ^th August 2023 under the EUSS for leave to remain as a 'Joining Family Member' of her father, also a Slovakian national. This application was refused on 5 ^th November 2023 as the Respondent was not satisfied that the Appellant was dependent on her father. The Appellant was required to demonstrate this as a child over the age 21 years old of a 'relevant sponsor'. This is the decision under challenge.

3.              As referred to above, the Appellant's appeal against the Respondent's decision of 5 ^th November 2023 was dismissed. I set aside the FtT's decision finding that the ground of appeal pursued by the Appellant was made out. I was satisfied that the Judge had applied the wrong sets of definitions and provisions of Appendix EU to the Appellant's appeal.

The appeal hearing

4.              This appeal was listed before me for re-making on 10 ^th January 2025. The sole remaining issue to be determined in the Appellant's appeal is whether the Appellant was dependent on her father, as at the time of her application, namely 8 ^th August 2023, and has remained so dependent thereafter.

5.              A re-making appeal bundle had been prepared by the Appellant's representatives but this had not been served on the Respondent, nor filed with the Tribunal. The Appellant's legal representatives were reminded at the hearing that directions must be complied with, that appeal bundles need to be uploaded in-time onto the Tribunal's online portal for lodging and separately served on the Respondent. If parties are unable to comply with directions, then this needs to be communicated to all concerned (Tribunal and the other side) with reasons.

6.              In light of the above, I facilitated a short adjournment to enable the appeal bundle to be served and for Ms Simbi, in the first instance, to consider whether she had any objection to this being admitted. Following this adjournment, Ms Simbi confirmed that she had no objection to the bundle being admitted and that she had had sufficient time to consider the further evidence and to prepare accordingly. In light of Ms Simbi's position, I duly admitted the bundle and all parties were content to proceed with the hearing on that basis.

7.              I heard oral evidence from the Appellant, who was assisted by a Slovakian court interpreter, as well as oral evidence from the Appellant's father, also assisted by the same interpreter.

8.              At the conclusion of the oral evidence, I heard oral submissions from both advocates. At the end of the hearing, I reserved my decision. I do not propose to rehearse the oral evidence heard and the oral submissions made here, but will consider and address these as part of my analysis set out below.

Analysis and conclusions

9.              The Appellant confirmed in her written evidence and as part of her application that her mother had died in February 2021. She was previously been living with her mother in Slovakia. The Appellant also explained that after her mother had died, she started to live with her boyfriend and she soon became pregnant. The relationship was short-lived and they separated before the Appellant travelled to the UK in 2022. After separating from her boyfriend, the Appellant went to live with her brother but she could not stay longer than one month as he had his own family commitments and pressures and his house was not large enough to accommodate the Appellant in addition to his own family.

10.          The Appellant stated that with the baby due, she decided to move to the UK in order to be closer to her father. The Appellant also gave details that she was not able to find accommodation on her own in Slovakia. The Appellant thought that this was because she was pregnant and of Roma ethnicity. None of this evidence from the Appellant was challenged by the Respondent.

11.          With regards to the Appellant's relationship with her father, the Appellant stated in her written evidence that she started living with him as soon as she arrived and that he pays the rent for their accommodation as well as all of the utility bills. The Appellant was seven months pregnant at the time of her arrival. The Appellant also confirmed that her father provides her with a payment of £270 per month as financial support for her and her child (the father's grand-child). The Appellant explained that her father used to transfer these funds directly into her bank account but after the Appellant's bank closed her account in May 2024, her father started to give this to her in cash. The Appellant stated that she uses this money to buy food for the household, which her father also does as well, and to buy all that her child needs.

12.          With regards to the wider support that the Appellant stated she received from her father, this included emotional support with him being her only surviving parent and practical help with her child. The Appellant stated that her child is also very attached to her grandfather. I note at this stage that the Appellant's child has been granted pre-settled status as the grand-child of an EEA national.

13.          The Appellant's evidence is supported by that of her father, who also corroborated the above in his written statement and in his oral evidence. The father also confirmed in his statement that following his own arrival in the UK in 2015, he would send funds to the Appellant's mother for the Appellant's "child support". The Appellant would have been 17 years old then. The father also stated that he advised her to come to the UK so that he could help her following the death of her mother and because he cannot travel to Slovakia as a result of his own complex health needs.

14.          In cross-examination, Ms Simbi asked the Appellant about certain transactions in her bank statements. It is clear from the Appellant's bank statements of July 2023-January 2024 that the Appellant received regular funds, directly transferred to her, from her father, including but not limited to the monthly transfers in the region of £200-270. Ms Simbi also asked questions of the Appellant's father, following up on matters raised with the Appellant, including whether the Appellant had always lived with him since being in the UK. Ms Simbi submitted that it was a matter for me as to whether I accepted the evidence of the Appellant and that of her father as to the issue of dependency. She stressed that much of the evidence had not been before the Respondent when the Appellant applied for her status under the EUSS. Ms Simbi made no other submissions seeking to challenge the evidence heard and the documentary/written evidence before me.

15.          As I have already recorded above, there was very little challenge, if any, to the Appellant's evidence that since her arrival in the UK, she had become dependent on her father. I am satisfied that there is no basis before me to doubt the veracity and honesty of the evidence of the Appellant and that of her father. Both witnesses' evidence was consistent with each other and supported by documentary evidence, in the form of the Appellant's bank statements (dating prior to the date by which the bank closed the Appellant's account).

16.          I am entirely satisfied therefore that the Appellant has demonstrated that she is dependent on her father for her essential needs: she lives in accommodation provided and paid for by him, including the utilities; she is given significant regular sums of money for support by her father, who also helps her with the care of her daughter. This has been the case since the Appellant's arrival in 2022 and throughout her living here. This includes therefore the relevant date of the Appellant's application to the Respondent. Furthermore, that the Appellant would not be able to meet her essential needs without the support that she has been receiving, and continues to receive, from her father. I also accept the evidence of the Appellant's father that he used to provide support to the Appellant prior to her coming to the UK but this support was less significant financially.

17.          For the reasons above, I find that the Appellant meets the EUSS requirements of the Immigration Rules contained in Appendix EU, Paragraph EU14A and associated definitions in Annex 1, as a joining family member of a relevant sponsor.

 

Notice of Decision

18.          Pursuant to my (annexed) decision promulgated on 7 ^th November 2024, the decision of the First-tier Tribunal involved the making of a material error of law.

19.          I remake the decision by allowing the Appellant's appeal against the Respondent's decision dated 5 ^th November 2023 on the basis that the decision was not in accordance with the EU Settlement Scheme Immigration Rules.

20.          I make a fee award for any fee that has been paid or is payable.

 

Sarah Pinder

 

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

11.02.2024

Annex

 

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-002485
	First-tier Tribunal No: EA/03686/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

7 November 2024

 

Before

 

UPPER TRIBUNAL JUDGE PINDER

 

Between

 

EMILIA FERIOVA

(NO ANONYMITY ORDER MADE)

Appellant

and

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

 

For the Appellant: Mr R Bircumshaw, Solicitor, Central England Law Centre.

For the Respondent: Ms K Simbi, Senior Presenting Officer.

 

Heard at Field House on 2 October 2024

DECISION AND REASONS

1.        The Appellant appeals with the permission of First-tier Tribunal Judge O'Garro against the decision of First-tier Tribunal Judge Cartin. By his decision of 22 ^nd March 2024, Judge Cartin ('the Judge') dismissed the Appellant's appeal against the Respondent's decision to refuse her leave to remain under the EU Settlement Scheme ('EUSS').

Background

2.        The Appellant is a Slovakian national, who entered the UK on 25 ^th February 2022. She is over the age of 21 years old and she applied on 8 ^th August 2023 under the EUSS for leave to remain as a 'Joining Family Member' of her father, also a Slovakian national. This application was refused on 5 ^th November 2023 as the Respondent was not satisfied that the Appellant was dependent on her father. The Appellant was required to demonstrate this as a child over the age 21 years old of a 'relevant sponsor'.

3.        The Appellant appealed against that decision and her appeal was listed for a non-compliance Case Management Review ('CMR') hearing by Cloud Video Platform ('CVP') before the Judge on 20 ^th March 2023. The Appellant was represented at that hearing by Ms Gannon, legal representative and the Respondent by a Presenting Officer. In the midst of addressing the apparent non-compliance by the Appellant and her representatives and when seeking to narrow the issues to be determined with both parties, the Judge determined that the Appellant's appeal was bound to fail and that there was no good reason to adjourn the matter to a substantive hearing. The Judge proceeded to dismiss the Appellant's appeal.

The Decision of the First-tier Tribunal Judge

4.        In his decision at [2], the Judge recorded that the Appellant applied as a the family member of a 'relevant EEA citizen'. At [3], the Judge confirmed that the apparent non-compliance from the Appellant had seemingly arisen as a result of a mis-spelling in the e-mail address used to send the FtT's directions in connection with the appeal and for preparing the matter to a substantive hearing.

5.        At [6]-[12], the Judge noted the timing and procedural history in connection with the Appellant's arrival in the UK and her EUSS application. He recorded that he wished to identify the relevant time by which the Appellant needed to establish dependency. The Appellant's submissions on this issue were duly recorded and the Judge contrasted those with his reading of the definition of 'child' contained in Annex 1 with particular reference to sub-paragraphs (b)(ii)(aa). In essence, the Judge's understanding of the definition entailed the Appellant needing to show dependency as at the 'specified date', namely as at 11pm on 31 ^st December 2020, and the Appellant's submission focused on the time of the application, namely by 8 ^th August 2023. I have summarised the intricacies of the 'child' and other relevant definitions in Appendix EU in more detail in my analysis section below.

6.        In those paragraphs, the Judge recorded further exchanges with the Appellant's representative and her inability to draw his attention to any authority, provision in Annex 1 or in Appendix EU more widely or from the Respondent's own guidance, which was capable of supporting the Appellant's position. The Judge then recorded whether there was any benefit in adjourning the appeal to a substantive hearing, ultimately determining that there was not, as I have summarised above at paragraph 3.

The Appeal to the Upper Tribunal

7.        Permission was granted by First-tier Tribunal Judge O'Garro. Judge O'Garro considered that it was arguable that the Judge had made an error in his interpretation of the relevant provisions in the Immigration Rules, noting that the Appellant had applied as a 'Joining Family Member' of a 'relevant sponsor'.

8.        There is no response to the grounds of appeal under Rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008. There is a skeleton argument from Mr Bircumshaw, which also sought to clarify the applicable provisions in the Immigration Rules and I am grateful to him for his assistance in that regard.

Submissions

9.        I was assisted by both representatives in going through the competing provisions of Appendix EU that were said to apply in relation to this Appellant. This included first the provisions that the Judge had applied, namely those that concerned a child over the age of 21 years old of a 'relevant EEA citizen' and second, those that Mr Bircumshaw submitted in fact applied to the Appellant, which concerned a child over the age of 21 years old as a 'Joining Family Member' of a 'relevant sponsor'.

10.    Following this exercise, Ms Simbi very helpfully and very fairly accepted that the wrong provisions had been considered by the Judge at the hearing in the FtT. Those provisions - as a child of a relevant EEA citizen - did indeed require an applicant to demonstrate dependency as at 31 ^st December 2020 (the specified date) whereas the provisions relating to a child as a 'Joining Family Member' of a 'relevant sponsor' merely required dependency to be shown as at the time of the application.

11.    In the circumstances, Ms Simbi quite properly agreed that the Judge had made a material error of law and that the decision needed to be set aside for re-making.

Analysis and Conclusions

12.    It was clear from the Respondent's decision that the Appellant's application had been considered under the category of a 'Joining Family Member' of a 'relevant sponsor'. Those are the terms expressly referred to by the Respondent in his decision. I consider therefore that that should have been the starting point when considering the relevant definitions and substantive criteria.

13.    I have re-produced in a separate annexe to this decision the provisions from Appendix EU and its Annex 1 that apply to this Appellant and upon which both parties before me are agreed. The Appellant does not lay a claim to Settled Status/Indefinite Leave to Remain and so I have only re-produced those that apply to Pre-Settled Status/Leave to Remain applications.

14.    From those provisions, the relevant criteria can be summarised as follows (my emphasis):

(a)           Under Appendix EU14A, an applicant meets the eligibility requirements for limited leave to enter or remain as a Joining Family Member of a relevant sponsor where the Secretary of State is satisfied, including by the required evidence of family relationship, that, at the date of application and in an application made after the specified date and by the required date , if the condition set out in the accompanying table is met.

(b)           The condition (from the relevant table) is that the applicant is a Joining Family Member of a relevant sponsor and there has been no supervening event in respect of the relevant sponsor.

15.    There was never an dispute between the parties as to the continuing residence of the Appellant's father in the UK.

16.    I now turn to the definitions of a 'Joining Family Member' ('JFM') and 'relevant sponsor' contained in Annex 1 to Appendix EU. These are re-produced in the annexe to this decision, despite their length. The relevant provisions to this appeal can be summarised as follows:

(a)           A JFM is a person who has satisfied the Secretary of State, including by the required evidence of family relationship, that they are, or were, for the relevant period the child of a relevant sponsor, and the family relationship existed before the specified date and continues to exist at the date of application (or did so for the period of residence relied upon);

(b)           The person needs to show that they were not resident in the UK and Islands on a basis which met the definition of 'family member of a relevant EEA citizen' at any time before the specified date.

17.    The definition of 'relevant sponsor' is also re-produced in the annexe to this decision. I do not summarise this here as both parties were in agreement that the Appellant's father meets this definition in the context of applications submitted after the specified date and after 1 ^st July 2021. Ms Simbi and Mr Bircumshaw agreed that the Appellant's father can meet both the definitions of 'relevant EEA citizen' and that of 'relevant sponsor' and it is effectively the terms of the Appellant's arrival in the UK - so to speak - that determine whether her application is considered with her father as a relevant sponsor or with him as a relevant EEA citizen.

18.    I now turn to the last piece in the puzzle, namely the definition of 'child', which as applying to the Appellant can be summarised as including the following (my emphasis):

- the direct descendant aged 21 years or over of a relevant EEA citizen (or, as the case may be, of a qualifying British citizen or of a relevant sponsor) or of their spouse or civil partner; and dependent on (as the case may be):

- the relevant EEA citizen (or on their spouse or civil partner) at the date of application or, where the date of application is after the specified date, at the specified date; or

- on the qualifying British citizen (or on their spouse or civil partner) at the date of application or, where the date of application is after the specified date, at the specified date; or

- on the relevant sponsor (or on their spouse or civil partner) at the date of application.

19.    It is clear therefore that the Appellant - as a direct descendant of her father, aged 21 years old over - needs to demonstrate that she is dependent upon him, the relevant sponsor, at the date of application.

20.    Pulling all of the relevant definitions together, the Appellant under Paragraph EU14A needs to show that she is a Joining Family Member of a relevant sponsor, who meets the condition in the table contained in that same paragraph at the date of her application. Subject to showing dependency, the Appellant as an over 21 years old child of a relevant sponsor, who is applying after the specified date and after 1 July 2021, need only to show the dependency as at the time of her application.

21.    At [7] of his determination, the Judge referred to the definition of a 'child' at (b)(ii)(aa) of that entry, which details the requirement to show dependency on her father as at the specified date, namely as at 31 ^st December 2020. I have not summarised this aspect of the definition in this decision but the relevant parts are included in the annexe to this decision. As is clear from the provisions of the 'child' definition, paragraph (b)(ii)(aa) applies to the father if he was to be considered as a 'relevant EEA citizen', and if that were the case dependency would fall to be assessed as at 31 ^st December 2020. Whereas paragraph (b)(ii)(cc) of that entry applies to a child of a 'relevant sponsor' and dependency is to be considered as at the time of the application.

22.    In light of the above and the parties' agreement before me, I am satisfied that the Judge applied the wrong sets of definitions and provisions of Appendix EU to the Appellant. Mr Bircumshaw very fairly acknowledged that the Judge was not assisted by the Appellant's representative before him. It is appropriate to note however that Ms Gannon was instructed to attend to represent the Appellant at a CMR hearing for non-compliance.

23.    As I have already recorded above, the issue of non-compliance was clarified at that hearing and it appears that the non-compliance arose through little fault of the Appellant, if any. Needless to say that the definitions included in Annex 1 to Appendix EU are far from straight forward. In the circumstances, it may have been better for the Judge to let the matter proceed to a substantive hearing, having attempted to narrow the issues at the CMR and having placed both parties on notice that queries remained as to the basis upon which the Appellant was seeking to prove her case. Directions ought to have been issued for a skeleton argument to expressly address the issue of dependency and the relevant pinch-point. The Appellant's legal representatives are clearly experienced in this field and it may have been possible to avoid the matter being appealed further to this Tribunal had this matter simply proceeded to a substantive hearing, as would ordinarily have been the case.

24.    I am satisfied therefore that the Judge has materially erred in law and the Judge's decision to dismiss the appeal is therefore set aside pursuant to s.12(2)(a) of the Tribunals, Courts and Enforcement Act 2007.

25.    Both parties agreed that the fact-finding that remains is sufficiently limited to enable the matter to be retained in the Upper Tribunal for re-making. The sole issue that remains to be determined is whether the Appellant was dependent on her father as at the time of her application in August 2023 and has remained so dependent to date.

Notice of Decision and Directions

26.    The decision of the First-tier Tribunal is set aside.

27.    The parties are to have careful regard to the following directions:

(1) The appeal is to be re-listed in the Upper Tribunal before Judge Pinder on the first available date at least four weeks after the date of the sending of this decision on error of law. The provisional time estimate for the hearing should be 1.5 hours, subject to any alternative view by the parties.

(2) Any further evidence relied on by either party is to be filed and served no later than seven days before the next hearing. The Appellant has permission to rely on the further evidence contained in the Appellant's supplementary bundle filed and served in preparation for the error of law hearing on 2 ^nd October 2024 - the Respondent not objecting to the same.

(3) In respect of any other person whom it is proposed to call to give oral evidence, there must be a witness statement drawn in sufficient detail to stand as evidence-in-chief such that there is no need for any further examination-in-chief. Any such further witness statement must be filed and served no later than seven days before the next hearing.

(4) All further evidence relied on by either party must be contained within a consolidated, paginated and indexed bundle.

(5) There must be a skeleton argument on behalf of the Appellant, filed and served no later 7 days before the hearing.

(6) An interpreter in the Slovak language will be arranged for the hearing.

 

 

Sarah Pinder

 

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

5 November 2024

 

ANNEXE TO DECISION - EXTRACTS OF RELEVANT PARAGRAPHS OF APPENDIX EU

 

Eligibility for limited leave to enter or remain

 

Persons eligible for limited leave to enter or remain as a joining family member of a relevant sponsor

 

EU14A. The applicant meets the eligibility requirements for limited leave to enter or remain as a joining family member of a relevant sponsor where the Secretary of State is satisfied, including by the required evidence of family relationship, that, at the date of application and in an application made after the specified date and by the required date, the condition set out in the following table is met:

 

Condition

Is met where:

(a) The applicant is:   (i)                  a joining family member of a relevant sponsor; or (ii)                a family member who has retained the right of residence by virtue of a relationship with a relevant sponsor; and   (b) The applicant is:   (i)                  not eligible for indefinite leave to enter under paragraph EU11A of this Appendix, where the application is made outside the UK; or (ii)                not eligible for indefinite leave to remain under paragraph EU11A of this Appendix, where the application is made within the UK, solely because they have completed a continuous qualifying period of less than five years which began after the specified date; and   (c) Where the applicant is a joining family member of a relevant sponsor, there has been no supervening event in respect of the relevant sponsor.

 

joining family member of a relevant sponsor

a person who has satisfied the Secretary of State, including by the required evidence of family relationship, that they are (and for the relevant period have been), or (as the case may be) for the relevant period (or at the relevant time) they were:   (a) the spouse or civil partner of a relevant sponsor, and (i) (aa) the marriage was contracted or the civil partnership was formed before the specified date; or (bb) the applicant was the durable partner of the relevant sponsor before the specified date (the definition of 'durable partner' in this table being met before that date rather than at the date of application), and the partnership remained durable at the specified date; and   (ii) (aa) (unless the applicant relies on meeting condition 1 or condition 3 of paragraph EU11A of this Appendix, or on being a family member who has retained the right of residence by virtue of a relationship with a relevant sponsor) the marriage or civil partnership continues to exist at the date of application; or (bb) (where the applicant relies on meeting condition 1 of paragraph EU11A of this Appendix) the marriage or civil partnership existed for the relevant period; or (cc) (where the applicant relies on meeting condition 3 of paragraph EU11A of this Appendix) the marriage or civil partnership existed immediately before the death of the relevant sponsor; or   (b) the specified spouse or civil partner of a Swiss citizen; or   (c) the durable partner of a relevant sponsor, and: (i) the partnership was formed and was durable before the specified date; and (ii) (aa) (unless the applicant relies on meeting condition 1 or condition 3 of paragraph EU11A of this Appendix, or on being a family member who has retained the right of residence by virtue of a relationship with a relevant sponsor) the partnership remains durable at the date of application; or (bb) (where the applicant relies on meeting condition 1 of paragraph EU11A of this Appendix) the partnership remained durable for the relevant period; or (cc) (where the applicant relies on meeting condition 3 of paragraph EU11A of this Appendix) the partnership remained durable immediately before the death of the relevant sponsor; or   (d) the child or dependent parent of a relevant sponsor, and the family relationship: (i) existed before the specified date (unless, in the case of a child, the person was born after that date, was adopted after that date in accordance with a relevant adoption decision or after that date became a child within the meaning of that entry in this table on the basis of one of sub -paragraphs (a)(iii) to (a)(xi) of that entry); and (ii) continues to exist at the date of application (or did so for the period of residence relied upon); or   (e) the child or dependent parent of the spouse or civil partner of a relevant sponsor, as described in sub - paragraph (a) above, and all the family relationships: (i) existed before the specified date (unless, in the case of a child, the person was born after that date, was adopted after that date in accordance with a relevant adoption decision or after that date became a child within the meaning of that entry in this table on the basis of one of sub -paragraphs (a)(iii) to (a)(xi) of that entry); and (ii) continue to exist at the date of application (or did so for the period of residence relied upon)   in addition, the person meets one of the following requirements:   (a) (where sub -paragraph (c) or (d) below does not apply) they were not resident in the UK and Islands on a basis which met the definition of 'family member of a relevant EEA citizen' in this table (where that relevant EEA citizen is their relevant sponsor) at any time before the specified date; or   (b) (where sub -paragraph (c) or (d) below does not apply) they were resident in the UK and Islands before the specified date, and: (i) one of the events referred to in sub - paragraph (b)(i) or (b)(ii) in the definition of 'continuous qualifying period' in this table has occurred, and after that event occurred they were not resident in the UK and Islands again before the specified date; or (ii) the event referred to in sub -paragraph (a) in the definition of 'supervening event' in this table has occurred, and after that event occurred they were not resident in the UK and Islands again before the specified date; or (iii) they are the specified spouse or civil partner of a Swiss citizen, and they do not rely on any period of residence in the UK and Islands before the marriage was contracted or the civil partnership was formed; or   (c) (where sub-paragraph (d) below does not apply) where the person is a child born after the specified date or adopted after that date in accordance with a relevant adoption decision, or after the specified date became a child within the meaning of that entry in this table on the basis of one of sub -paragraphs (a)(iii) to (a)(xi) of that entry (with the references below to 'parents' in this sub - paragraph construed to include the guardian or other person to whom the order or other provision referred to in the relevant sub -paragraph of (a)(iii) to (a)(xi) of that entry relates), one of the following requirements is met: (i) both of their parents are a relevant sponsor; or (ii) one of their parents is a relevant sponsor and the other is a British citizen who is not a relevant sponsor; or (iii) one of their parents is a relevant sponsor who has sole or joint rights of custody of them, in accordance with the applicable rules of family law of the UK, of the Islands or of a country listed in sub -paragraph (a)(i) of the entry for 'EEA citizen' in this table (including applicable rules of private international law under which rights of custody under the law of a third country are recognised in the UK, in the Islands or in a country listed in sub - paragraph (a)(i) of the entry for 'EEA citizen' in this table, in particular as regards the best interests of the child, and without prejudice to the normal operation of such applicable rules of private international law); or   (d) where the person is a child born after the specified date to (or adopted after that date in accordance with a relevant adoption decision by or after that date became, within the meaning of the entry for 'child' in this table and on the basis of one of sub -paragraphs (a)(iii) to (a)(xi) of that entry, a child of) a Swiss citizen or their spouse or civil partner (as described in the first sub -paragraph (a) in this entry), the Swiss citizen or their spouse or civil partner is a relevant sponsor.

 

Relevant sponsor

(a) where the date of application by a joining family member of a relevant sponsor is after the specified date and before 1 July 2021: (...)   (b) where the date of application by a joining family member of a relevant sponsor is on or after 1 July 2021: (i) an EEA citizen (in accordance with sub-paragraph (a) of that entry in this table) who, having been resident in the UK and Islands for a continuous qualifying period which began before the specified date, has been granted: (aa) indefinite leave to enter or remain under paragraph EU2 of this Appendix (or under its equivalent in the Islands), which has not lapsed or been cancelled, revoked or invalidated; or (bb) limited leave to enter or remain under paragraph EU3 of this Appendix (or under its equivalent in the Islands), which has not lapsed or been cancelled, curtailed or invalidated; or (ii) an Irish citizen who, having been resident in the UK and Islands for a continuous qualifying period which began before the specified date, would, if they had made a valid application under this Appendix before 1 July 2021, have been granted: (...) (iii) a person who falls within sub -paragraphs (a), (c) and (d) of the entry for 'relevant naturalised British citizen' in this table, who, if they had made a valid application under this Appendix before 1 July 2021, would, but for the fact that they are a British citizen, have been granted: (...) (iv) an EEA citizen (in accordance with sub - paragraph (d) of that entry in this table) who is a relevant person of Northern Ireland in accordance with sub -paragraph (a)(ii) of that entry in this table: (...) (v) an EEA citizen (in accordance with sub - paragraph (d) of that entry in this table) who is a relevant person of Northern Ireland in accordance with sub -paragraph (a)(i) or (a)(iii) of that entry in this table: (...) (vi) a person exempt from immigration control who, having been resident in the UK and Islands for a continuous qualifying period which began before the specified date and if they had made a valid application under this Appendix before 1 July 2021, would have been granted: (...) (vii) a frontier worker   in addition:   (a) save for the purposes of condition 3 in the table in paragraph EU11A of this Appendix and of sub-paragraphs (a) and (b) of the entry for 'family member who has retained the right of residence' in this table, the relevant sponsor has not died; and   (b) notwithstanding what is said above, where the date of application by a joining family member of a relevant sponsor is on or after 1 July 2021, it will suffice that the relevant sponsor is or (as the case may be) was resident in the UK and Islands for a continuous qualifying period which, unless they are a specified relevant person of Northern Ireland, began before the specified date where the applicant: (i) on the basis of events which occurred during the period to which sub-paragraph (a)(ii)(aa) or (a)(iii)(aa) of the entry for 'required date' in this table refers, relies on being a family member who has retained the right of residence by virtue of a relationship with a relevant sponsor, or has limited leave to enter or remain granted on that basis under paragraph EU3A of this Appendix; or (ii) relies on meeting condition 3 in the table in paragraph EU11A of this Appendix; or (iii) (aa) has limited leave to enter or remain granted under paragraph EU3A of this Appendix; and (bb) would have been eligible for indefinite leave to enter or remain under condition 1, 2 or 3 in the table in paragraph EU11A of this Appendix, had they made a further valid application under this Appendix (subsequently to that which led to the grant of leave to which sub-paragraph (b)(iii)(aa) immediately above refers) before the indefinite or limited leave to enter or remain granted under paragraph EU2 or (as the case may be) EU3 to their relevant sponsor lapsed or was cancelled, curtailed, revoked or invalidated (or would have done so or been so, where the first sub-paragraph (b)(ii) above or sub-paragraph (b)(iii), (b)(iv)(bb)(bbb), (b)(iv)(bb)(ddd), (b)(v) or (b)(vi) above applies); for the purposes of this provision, the reference to continuous qualifying period in this sub-paragraph (b) will be treated as a relevant reference for the purposes of sub-paragraph (c)(v) of the entry for 'continuous qualifying period' in this table, where sub-paragraph (c)(i), (c)(ii), (c)(iii) or (c)(iv) of that entry does not apply

 

Child

(a) the direct descendant under the age of 21 years of a relevant EEA citizen (or, as the case may be, of a qualifying British citizen or of a relevant sponsor) or of their spouse or civil partner; or   (b) (i) the direct descendant aged 21 years or over of a relevant EEA citizen (or, as the case may be, of a qualifying British citizen or of a relevant sponsor) or of their spouse or civil partner; and (ii) (unless the applicant was previously granted limited leave to enter or remain under this Appendix as a child on the basis that sub-paragraph (a) above applied or under its equivalent in the Islands on that basis) dependent on (as the case may be): (aa) the relevant EEA citizen (or on their spouse or civil partner) at the date of application or, where the date of application is after the specified date, at the specified date; or (bb) on the qualifying British citizen (or on their spouse or civil partner) at the date of application or, where the date of application is after the specified date, at the specified date; or (cc) on the relevant sponsor (or on their spouse or civil partner) at the date of application   'dependent' means here that:   (a) having regard to their financial and social conditions, or health, the applicant cannot, or (as the case may be) for the relevant period could not, meet their essential living needs (in whole or in part) without the financial or other material support of the relevant EEA citizen (or, as the case may be, of the qualifying British citizen or of the relevant sponsor) or of their spouse or civil partner; and   (b) such support is, or (as the case may be) was, being provided to the applicant by the relevant EEA citizen (or, as the case may be, by the qualifying British citizen or by the relevant sponsor) or by their spouse or civil partner; and   (c) there is no need to determine the reasons for that dependence or for the recourse to that support   in addition:   (a) 'child' includes: (i) an adopted child of; or (ii) a child born through surrogacy (where recognised in UK law or Islands law) for; or (iii) a child in respect of whom a special guardianship order (within the meaning of section 14A(1) of the Children Act 1989) is in force appointing as their special guardian; or (iv) a child in respect of whom an order has been made under section 5 of the Children Act 1989 appointing as their guardian; or (v) a child subject to a permanence order made under section 80 of the Adoption and Children (Scotland) Act 2007 vesting parental responsibilities and parental rights in a person who is; or (vi) a child who has a guardian appointed under section 7 of the Children (Scotland) Act 1995, or who is living with a person pursuant to an order made under section 11 of that Act, and that guardian or other person is; or (vii) a child in respect of whom an order has been made under Article 159 of the Children (Northern Ireland) Order 1995, or in respect of whom an appointment has been made under Article 160 of that Order, appointing as their guardian a person who is; or (viii) a child who has a guardian appointed under section 12 or 14 of the Children (Guernsey and Alderney) Law 2008 or section 12 or 13 of the Children (Sark) Law 2016, or who is living in the care of a person pursuant to an order made under section 14 of the 2008 Law or section 13 of the 2016 Law, and that guardian or other person is; or (ix) a child in respect of whom an order under Article 7 of the Children (Jersey) Law 2002 is in force appointing as their guardian; or (x) a child in respect of whom a special guardianship order (within the meaning of section 17A of the Children and Young Persons Act 2001 of Tynwald) has been made appointing as their special guardian; or (xi) a child in respect of whom an order has been made under section 6 or 7 of the Children and Young Persons Act 2001 of Tynwald appointing as their guardian, a relevant EEA citizen (or, as the case may be, a qualifying British citizen or a relevant sponsor) or their spouse or civil partner, but 'child' does not include a child cared for by a relevant EEA citizen (or, as the case may be, by a qualifying British citizen or by a relevant sponsor) or their spouse or civil partner solely by virtue of a formal or informal fostering arrangement; and   (b) 'direct descendant' also includes a grandchild or greatgrandchild, other than for the purpose of meeting condition 7 in the table in paragraph EU11 of this Appendix, condition 4 in the table in paragraph EU11A or condition 4 in the table in paragraph EU12; and   (c) 'spouse or civil partner' means (...)