Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-000617

First-tier Tribunal No: EA/52640/2023
LE/01616/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 25 June 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE LAY

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
v

GLORIA ENABULELE
(NO ANONYMITY DIRECTION MADE)
Respondent

Representation:
For the Appellant: Ms A Ahmed, Senior Home Office Presenting Officer
For the Respondent: None

Heard at Field House on 20 June 2025

DECISION AND REASONS
1. This case came before me for an oral hearing to re-make the decision on the Appellant’s appeal. It had last been listed for hearing on 28 March 2025 when it was adjourned with Directions made for the provision of any further evidence. As on the last occasion, neither Ms Enabulele nor a representative on her behalf attended.
2. The Appellant is an Italian national whom the Home Office accepts was resident in the UK at time of the country’s departure from the European Union on 31 December 2020. In order to qualify for pre-settled status under Appendix EU of the immigration rules, ie. the EU Settlement Scheme (EUSS), she needs to satisfy the Tribunal that from 31 December 2020 until the date of her EUSS application of 26 December 2022, she has not been absent from the UK for a total of six months in any 12-month period.
3. In a determination dated 25 June 2024 the Upper Tribunal set aside a determination of the First-Tier Tribunal dated 2 January 2024 which had originally allowed the Appellant’s appeal. The reason was that the First-Tier Judge had applied the wrong test when considering whether or not there had been periods of absence since 31 December 2020.
Developments since the adjournment on 28 March 2025
4. Directions were made on 31 March 2025 which permitted the Appellant “to rely on further evidence relating to her presence in the UK”.
5. On 2 April 2025 a letter from the Senior Home Office Presenting Officer, who appeared at the hearing of 28 March 2025, was sent to the Upper Tribunal stating that checks had revealed that the Appellant had sought to enter the UK on 11 August 2023 with her daughter, been subject to interview by an Immigration Officer and then removed the same day. While this did not assist with understanding her periods of residence from December 2020 to December 2022, it did at least shed light on the reality that she was no longer in the UK. The Upper Tribunal continued to send her correspondence to the email address of a third party, Mr Tommy Ebenezer, which had been provided, as well as the postal address in south London on record.
6. On 6 April 2025 a short message was received from the third party via email asking that Ms Enabulele’s appeal be withdrawn.
7. On 15 April 2025 an Upper Tribunal lawyer wrote to the parties to inform them that, since the Secretary of State was still “the Appellant” in the UT appeal, it was not open to Ms Enabulele to rely upon Rule 17 of the UT Procedure Rules in seeking to withdraw.
8. On 7 May 2025 the Secretary of State served a witness statement from Stephen James Shepherd at HMRC who gave evidence that there were “no PAYE Employment records held for the subject for the tax years 2019-20 to 2021-22” nor any record of self-employment.
9. On 11 June 2025, Mr Deller, on behalf of the Secretary of State, proposed a Consent Order to Ms Enabulele which would have had the effect of the appeal being withdrawn but with an agreement by her that the appeal should be dismissed. This was a pragmatic and useful suggestion to bypass the Rule 17 issue. However, there has been no engagement by Ms Enabulele.
10. Ms Ahmed, on behalf of the Secretary of State today, confirmed that the Home Office would not “withdraw” in these circumstances without a Consent Order, and therefore invites me to dismiss the appeal with reasons.
11. The consequence of the procedural history is that the appeal remains live before me and requires resolution on the basis of the evidence as it stands.
12. For the avoidance of doubt, in the absence of a request to adjourn again (indeed, I bear in mind that Ms Enabulele in fact wished to withdraw), I am satisfied that it would be fair and just to hear the appeal in her absence. It is likely that she has been outside the UK since August 2023 but she has not provided any further evidence or clarification following the Directions of 31 March 2025.
Evidence and findings
13. It is for the Appellant to show that she meets EU14 by establishing her continuous residence in the UK from 31 December 2020 to 26 December 2022 (the date of her application).
14. I have had regard to the following evidence: (i) the 399-page bundle of itemised bank statements running from 2021 to 2024 which, prima facie, is evidence of Ms Enabulele being active in the UK over the period 2021/2022, by way of transactions and the use of a bank card. This evidence was provided to the Tribunal on 30 June 2024 by the third party assisting Ms Enabulele; (ii) Ms Enabulele’s payslips from Drive Shark Ltd (various dates) and Souvlaki City Ltd (various dates); (iii) a letter confirming Ms Enabulele to be on the electoral register in Lewisham dated 20 January 2023; (iv) the witness statement from HMRC; (v) the material relating to Ms Enabulele’s removal from the UK upon (re-)entry on 11 August 2023, which included an interview with an Immigration Officer.
15. Ms Ahmed submitted, consistent with the Home Office’s longstanding position, but now further buttressed by the evidence from HRMC, that the payslips provided are not sufficient or reliable evidence of presence in the UK and/or reveal gaps in presence. The bank statements, meanwhile, which apparently showed continuous activity over a long period, are not necessarily evidence that Ms Enabulele was the individual using the account and/or multiple cards connected to the account. One unusual feature of the statements is that, for example, in the period in August 2023 when it is now likely Ms Enabulele was outside the UK, sought to enter on 11 August 2023 and was removed, the bank statements show continuous and unbroken economic activity in the UK itself. This calls for an explanation which, in the absence of any clarification by Ms Enabulele, is not in front of the Upper Tribunal.
16. Since the requirement under EU14 is simply to show residence, rather than also exercising Treaty rights, there are cases in which bank statements and payslips are sufficient to satisfy the Respondent (or the Tribunal) that someone has indeed been in the UK for the periods claimed. This is reflected in the Respondent’s guidance, EU Settlement Scheme: EU, other EEA and Swiss citizens and their family members”, Version 27.0, dated 9 April 2025, which states “Alternative evidence of residence: Because the documents listed below cover a shorter period, the applicant may need to submit more of them to evidence that they meet the residence requirement. Where an applicant submits evidence from this list, a single piece of evidence is likely to be sufficient for the period it covers: • a dated bank statement (other than an annual statement, as above) showing payments received or spending in the UK - this will be treated as evidence of residence for the period covered by the bank statement”.
17. However, plainly where there is doubt or confusion over the evidence provided, more will be required. In this case, there are such doubts and confusions. The payslips show gaps in time time and do not match up with what would be expected to be held by HMRC. The bank statements are problematic in light of what is likely to be the Appellant’s period outside the UK in 2023. It may be that Ms Enabulele could have assuaged concerns and addressed gaps by providing written evidence of some kind but she has not done so.
18. I find that I cannot be satisfied, on the balance of probabilities, that from 31 December 2020 until the date of her EUSS application of 26 December 2022 Ms Enabuele has not been absent from the UK for a total of six months in any 12-month period. Her challenge to the EUSS refusal therefore fails.

Notice of Decision
The appeal decision is remade and dismissed.

Taimour Lay

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

20 June 2025