UI2023002427

             By the decision of the Upper Tribunal (Judge Reeds) issued on 15.8.23, the appellant, a national of Iraq, has been granted permission to appeal to the Upper Tribunal against the decision of the First-tier Tribunal (Judge Mills) promulgated 13.4.23 dismissing her appeal against the respondent's decision of 15.9.22 refusing her EUSS application made on 30.7.21 for residence in the UK as the family member of a qualifying British Citizen, under Annex 1 of Appendix EU of the Immigration Rules.

             In granting permission, Judge Reeds considered that: "The grounds raise arguable points concerning the construction and meaning of the phrase 'immediately before returning to the UK' as set out in the grounds of challenge. The FtTJ recorded in his decision that he found that this was a point that was not easy for him to decide, and reference has been made to the relevant guidance. In the circumstances the grounds of challenge set out arguable issues to be determined."

             The Upper Tribunal has received the respondent's Rule 24 reply, dated 24.8.23, and the respondent's skeleton argument of 19.9.23. The appellant relies on the grounds of application for permission.

             Following the helpful and patient submissions of both representatives, I indicated that I found no material error of law in the decision of the First-tier Tribunal but reserved my full decision and reasons to be given in writing, which I now do.

             Unarguably, the respondent's Guidance, as cited at [23] of the decision requires the appellant to be resident in the EEA host country with the qualifying British citizen exercising his Treaty rights by the specified date of 31.12.20 and immediately before returning to the UK. The appellant submitted that this interpretation of the provisions was in error. The First-tier Tribunal accepted that the Guidance was not binding and went on to consider the detailed provisions before reaching its conclusion.