A ‘dependent parent’ already admitted under the EU Settlement Scheme can get leave to remain without having to show dependency, the Upper Tribunal has held in Rexhaj (extended family members: assumed dependency) [2023] UKUT 00161 (IAC).

If applying before 30 June 2021, the parent of an EU national or of their spouse could obtain entry clearance as a ‘dependent parent’ without actually needing to prove they were dependent. Appendix EU (Family Permit) to the Immigration Rules said dependency would just be assumed. A parent who wants to stay longer than six months then needs to apply for leave to remain under Appendix EU. That Appendix does require dependency to be proven, unless the person has previously been ‘granted limited leave to enter or remain under this Appendix as a dependent parent’.

Ms Rexhaj was in this situation. The Home Office and First-tier Tribunal told her she needed to show dependency, because her leave to enter had been granted under Appendix EU (Family Permit), not under Appendix EU.

She appealed, and the Upper Tribunal concluded this was wrong. Its reasoning turned on the legal distinction between entry clearance (a visa granted before travel) and leave to enter (permission to enter the UK granted by an immigration officer on arrival). On a proper reading, Appendix EU (Family Permit) only governs entry clearance. Leave to enter is granted at the border under Appendix EU. Someone like Ms Rexhaj, therefore, has leave ‘under this Appendix’ and qualifies for an extension without needing to show dependency.

As the UT commented, the post-Brexit rules ‘do not appear to have been drafted with future (or even present) clarity in mind’. Ms Rexhaj won’t be the only person wrongly told to prove dependency after not having to do so in her first application. This decision provides welcome clarification.