The Secretary of State for the Home Department v Have Rexhaj
[2024] EWCA Civ 784
Secretary of State for the Home Department v MD & Ors
26 January 2024
[2024] UKUT 64 (IAC)
Upper Tribunal
Three children's visas were cancelled because their stepmother, who was supposed to sponsor them, said she didn't want them to come to the UK. A court said the children had to show they were actually joining their stepmother, not just living in the UK at the same time. Since the stepmother didn't want them, the court said the visas should be cancelled.
Key Facts
- •Three siblings (MD, MSD, JD) appealed the cancellation of their EU Settlement Scheme Family Permits.
- •Their father, Mr. Duah, is married to Ms. Opoku, a Dutch national with settled status in the UK.
- •The children applied for entry clearance under Appendix EU (Family Permit) as family members of Ms. Opoku.
- •Ms. Opoku later stated she did not sponsor the application and did not wish to sponsor them.
- •The First-tier Tribunal (FtT) allowed the appeal, finding Ms. Opoku's residency in the UK satisfied the requirements.
- •The Upper Tribunal (UT) granted permission to appeal, questioning the interpretation of 'joining' in Appendix EU (Family Permit).
Legal Principles
The meaning of 'joining' in FP6(1)(d) of Appendix EU (Family Permit).
Appendix EU (Family Permit), Immigration Rules
Eligibility requirements for entry clearance under Appendix EU (Family Permit) must be met at the date of application.
Appendix EU (Family Permit)
Guidance documents are not legally binding; primary legislation is the ultimate source.
Case Law (UT's interpretation)
Cancellation of leave to enter is proportionate if there's a change in circumstances relevant to eligibility.
Appendix EU (Family Permit), A3.4(c)
Outcomes
The UT set aside the FtT's decision.
The FtT misconstrued the meaning of 'joining' in FP6(1)(d), relying on non-binding guidance and failing to consider Ms. Opoku's withdrawal of support.
The UT dismissed the appeal.
The UT found that a material change in circumstances occurred after the grant of entry clearance, with Ms. Opoku's withdrawal of support making the applicants ineligible under FP6(1)(d). The UT considered proportionality, noting the children's established life in Ghana and the lack of evidence of unmet needs.
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