Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2023-005021
First-tier Tribunal No: EA/01358/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 17 June 2026

Before

UPPER TRIBUNAL JUDGE NEVILLE

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

FABIANA ALVES DOS SANTOS
(No anonymity direction)
Respondent

Representation:
For the Appellant: Mr P Deller, Senior Presenting Officer
For the Respondent: No attendance or representation

Heard at Field House on 4 June 2026

DECISION AND REASONS
1. Ms Dos Santos is a national of Brazil. On 27 January 2022 she made an application under the EU Settlement Scheme which was refused by the Secretary of State on 24 January 2023.
2. The First-tier Tribunal (“FtT”) allowed the appeal against that decision on 12 August 2023 and the Secretary of State appealed to the Upper Tribunal. Following a hearing before UTJ McWilliam and DUTJ Burgher on 10 July 2025, for reasons already sent to the parties the Upper Tribunal found that the FtT had erred in law and directed that its decision be set aside and be re-made by the Upper Tribunal at a further hearing. The first listing of that hearing had to be adjourned, and it was relisted to take place on 6 June 2026.
3. Ms Dos Santos did not attend the hearing. There is evidence before the Tribunal that her personal circumstances caused her to return to Brazil. All relevant documents have been sent to her by post and/or email in accordance with rule 13(1)(a) or, as appropriate, (c), including instructions on how to connect to the hearing by video. I find that reasonable steps have been taken to notify Ms Dos Santos of the hearing and that there is no apparent reason for her lack of attendance, or to think it would be secured by a further adjournment. Applying the overriding objective, I consider that further adjournment would be entirely disproportionate to the further expense and delay it would cause, and pursuant to rule 38 it is in the interests of justice to proceed with the hearing in the absence of Ms Dos Santos.
4. The issue on appeal has already been identified as being whether the requirements of Appendix EU are met, and the burden of proof falls on Ms Dos Santos. While all the requirements of the rules potentially fall to be considered, as argued by Mr Deller and as apparent from the underlying documentation, the basis upon which Ms Dos Santos previously claimed to meet the rules was as a ‘person with a Zambrano right to reside’ as defined in Appendix EU. Because on her own account she had been in the UK for less than five years on the date she applied, in practice she had to show that on the date of application she had been resident for a continuous qualifying period in the UK which began before 11pm on 31 December 2020, and throughout which:
a. She was the primary carer of a British citizen who lives in the UK; and
b. The British citizen would in practice be unable to live in the UK, the European Economic Area or Switzerland if Ms Dos Santos in fact left the UK for an indefinite period.
5. There is no more evidence available than was before the FtT, and it is limited to some documents showing Ms Dos Santos and her child’s presence in the UK on various dates. Even were I to accept from that evidence, as did the FtT, that Ms Dos Santos and her child lived in the UK for a period that straddled the date of 31 December 2020, then the other requirements are not met. Mr Deller fairly volunteered his willingness to accept the evidence as showing that Ms Dos Santos was the mother of a British child and was, given the child’s age, more likely than not her primary carer. There is nonetheless no evidence at all addressing (b), not even a narrative witness statement, letter or supporting information in the application form or the appeal form. While Ms Dos Santos ticked a box on the application form to say that there was no one else in the UK who could care for her child if she and her husband left the UK, this does not address where else they might be able to live and would in any event be insufficient evidence to discharge the burden of proof.
6. The only grounds upon which an appeal of this type can be allowed are that (i) the decision is contrary to the rules or (ii) it is contrary to Ms Dos Santos’s rights under the Withdrawal Agreement. For the reasons above, Ms Dos Santos has not established that the decision is contrary to the rules, and the Withdrawal Agreement confers no rights upon those with a Zambrano right to reside. Her appeal must be dismissed.
Notice of Decision
(i) The decision of the First-tier Tribunal involved the making of an error of law and is set aside.
(ii) The Upper Tribunal re-makes the decision by dismissing Ms Dos Santos’s appeal against the decision of 24 January 2023.

J Neville

Judge of the Upper Tribunal
Immigration and Asylum Chamber

4 June 2026