Adopted son of EU national challenges refusal of European family permit

The adopted son of an EU national has successfully challenged a ruling that he had no right of appeal against the decision to refuse him a European family permit.

The boy was the adopted son of Dutch father and a Ugandan mother. The couple were married.

In November 2019, the mother, along with the couple’s two biological children and the adopted child, had applied under the EU Settlement Scheme (EUSS) for family permits to allow them to travel from Uganda to the UK.

This would allow the wife to join her husband who, as a relevant EEA citizen, was exercising treaty rights in the UK.

Family permits were granted to the wife and the biological children, but the adopted child’s application was refused on the basis that the evidence provided did not demonstrate he had been adopted in accordance with the requirements of Annex 1 of Appendix EU (Family Permit) of the Immigration Rules.

An appeal by the child to the First Tier Tribunal (Immigration Chamber) (FTT) was refused. The FTT stated that under the EUSS, anyone who made a valid application for a family permit after 11pm on 31 January 2020 had a right of appeal against refusal, but as the child’s application had been made prior to that date, there was no right of appeal.

The Dutch father petitioned on behalf of the adopted son for judicial review of the FTT’s decision that there was no right of appeal.

The Upper Chamber quashed the FTT’s decision.

It noted that the child had appealed to the FTT by lodging a Form IAFT-6 (appeal from out of country), which expressly allowed for appeals against human rights decisions, EEA decisions, decisions under the EUSS, and those regarding EEA family permit and EUSS travel permit applications.

That range of options was difficult to reconcile with the view that rights of appeal sprang into existence for the first time for refusal of applications lodged after EU exit day.

The decision was quashed, and the matter remitted to a differently constituted tribunal.

The court added that there seemed sufficient arguable merit in the submissions based on the case law to justify careful consideration, not least given the serious consequences for the child and wider family members.

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OA (Holland) v Secretary of State for the Home Department
Court of Session (Outer House)
10 August 2021
Where Reported
[2021] CSOH 80
Lord Malcolm